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CARMELO V. S ISON
AMADO D. VALDEZ
O LIVER B. S AN A NTONIO
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An Environmental Writ:
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views expressed therein.
SYNOPSIS
(The Articles in this Issue)
For this issue, the IBP Journal presents an eclectic selection of articles that
presents both traditional and non-traditional analyses of important legal and
constitutional issues.
In the book “The Idea of Law,” Professor Dennis Lloyd observed, “Every rule of
international law imposes a legal fetter on national states in the international sphere,
for this is the very sense and meaning of an international legal order.”1
The Philippines has interacted and cooperated with neighboring countries and
the rest of the international community through the decades, and as of this writing,
has concluded some 1,660 agreements with them since 1946.
* J. Eduardo Malaya is Assistant Secretary for Legal Affairs of the Philippine Department of Foreign Affairs (DFA)
and concurrently DFA Spokesman. He was the country’s Alternate Representative to the High-Level Legal
Experts’ Group on matters arising from the ASEAN Charter (HLEG) in 2008-2009, and served as an adviser
to the Philippine government panel for the peace negotiations with the Moro Islamic Liberation Front in 2009-
2010. A career foreign service officer with the rank of Chief of Mission Class II, he has economics (cum laude)
and law degrees from the University of the Philippines. Maria Antonina Mendoza-Oblena is DFA Director for
Treaties, and in 2009-2010, was a member of the Philippine HLEG delegation. A career foreign service officer,
she has Bachelor of Music degrees in piano and music education (cum laude) from the University of Santo
Tomas and a Juris Doctor from the Ateneo de Manila University.
This article is adapted from the introductory chapter in the book “Philippine Treaties Index, 1946 - 2010,”
published by the Foreign Service Institute in June 2010.
1 Dennis Lloyd, The Idea of Law (Reading, UK: Cox and Wyman Ltd, 1964), p 190.
From February 2001 to the first half of 2010, during the presidency of Gloria
Macapagal-Arroyo, the Philippines concluded some 393 agreements, notably eleven
on the promotion and protection of overseas Filipino workers, ten tourism promotion
agreements, nine investment promotion accords, eight health cooperation accords,
six environmental conservation and protection agreements, and five on social security
benefits. This record reflects the priority given these areas by the administration,
especially on the welfare of overseas Filipinos, economic promotion and environment
protection.
Among the agreements are a number of free trade agreements entered by the
Philippines and its ASEAN partners with the economies of major neighboring
countries, the Philippine-Japan Economic Partnership Agreement, the Stockholm
Convention on Persistent Organic Pollutants, arrangements for the headquarters of
the ASEAN Centre for Biodiversity and the Worldfish Centre in the Philippines,
and the accessions to the Convention against Torture and the Protocol Additional
to the Geneva Conventions of 12 August 1949.
Similar foreign policy priorities will most likely be pursued by the administration
of President Benigno S. Aquino III, with added emphasis on human rights,
international humanitarian law and anti-corruption.
This study is a modest attempt at documenting the treaty law and practice at
the Office of Legal Affairs (OLA) of the Philippine Department of Foreign Affairs
(DFA). As will be discussed below, OLA is the official repository of the treaties
entered into by the country. The office also provides legal guidance and support to
the DFA and other departments and agencies of the Philippine government in the
negotiation, signing and ratification of international agreements.
This paper will examine the provisions of the Constitution which have relevance
to treaty-making, and discuss the definition and coverage of the term “treaty,” the
capacity of states to enter into treaties, both at the international and domestic law
levels, and the categories of international agreements, also in the international and
domestic law levels.
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Philippine Treaty Law and Practice
Article II, Section 7. The State shall pursue an independent foreign policy.
In its relations with other states the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the right
to self-determination.
(a) The Philippine Constitution, specially Article VII, Section 21 which states, “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;
(c) Executive Order No. 459, series of 1997, which sets the guidelines in
the negotiation, conclusion and ratification of international agreements.
The term “treaty” is used in this study as defined in the Vienna Convention on
the Law of Treaties,4 Article 2 (1) of which states that:
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Philippine Treaty Law and Practice
In the Philippines, the President, as Chief Executive and head of state, has the
power to conduct foreign relations. As chief architect of Philippine foreign policy, he
has the power to make treaties. As described by Senator Arturo Tolentino,
A. In International Law
11 Arturo Tolentino, The President and the Batasan on Foreign Affairs, in The Powers of the Philippine President, as quoted
by J. Eduardo Malaya, Conflict and Cooperation in the Crafting and Conduct of Foreign Policy, Philippine Law Journal,
Vol. 84, p. 561.
12 OLA Office Order No. 02-07 - Guidelines in Reviewing International Agreements, in J. Eduardo Malaya, ed., Manual
on Treaties Review (DFA-OLA, January 2008), p. 1.
13 Aust, p. 18.
Rather than creating international legal rights and obligations, the intention
of the participants is to record mutual understandings as to how they will conduct
themselves. Thus, MOUs often contain broad goals and plans shared by the
participants. Its terms are on a best-effort basis and are not legally enforceable.
The title of the instrument does not, in itself, determine the nature or status
of the instrument. What is determinative is whether the negotiating states intended
the instrument to be legally-binding or not. It is only by examining the terms of an
instrument can one determine its status.17
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Philippine Treaty Law and Practice
Many exchanges of notes are in the nature of MOU, but these could also
constitute legally-binding treaty/MOA depending upon their substance. Due care
has to be exercised.
The 1987 Constitution, Executive Order No. 459, s. 1997, and jurisprudence
govern the subject in domestic law.
The distinction drawn between a treaty and an executive agreement is based on the cases
USAFFE Veterans v. Treasurer of the Philippines, et al20 (1959), and Commissioner
of Customs vs. Eastern Sea Trading (1961), where the Supreme Court made a distinction
between a “treaty” as referred to in the Constitution and another class of agreements called “executive
agreement.” According to the Court,
International agreements involving political issues or changes of national policy and those
involving international arrangements 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.
18 Ibid.
19 Vienna Convention on the Law of Treaties, Article 2 (1).
20 105 Phil. 1030 (1959).
The above ruling has been observed through the years, and the practice became
codified when Executive Order No. 459, series of 1997 was issued by President
Fidel V. Ramos.21
According to the executive order, the Office of Legal Affairs, on behalf of the
DFA, determines whether an agreement is an executive agreement or treaty. Thus:
As noted in the Eastern Sea Trading ruling, a treaty would involve political issues
or changes of national policy, or arrangements of permanent character.24 An agreement
which would conflict with existing laws and thus require amendment of said laws
should be considered as a treaty requiring Senate concurrence. Those which may be
in conflict with established national policy and require a change of said policy shall
likewise be deemed as requiring Senate concurrence. Agreements which would require
the enactment of a law for its implementation will also require Senate concurrence.
21 See also Gonzalez v Hechanova, 9 SCRA 243; World Health Organization v. Hon. Aquino, 48 SCRA 242; and
Joaquin Bernas, S.J., Foreign Relations in Constitutional Law (1995), pp 112-115.
22 Senator Miriam Defensor-Santiago, Procedure for Senate Concurrence to Treaties (2007), p. 2.
23 Executive Order No. 459, section 2 (b) and (c).
24 Commissioner of Customs v. Eastern Sea Trading (1961).
25 Tax exemptions may be made only under the authority of Congress in accordance with Article VI, Section 28
(2) of the Constitution and the Customs and Tariffs Code.
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Philippine Treaty Law and Practice
On the other hand, executive agreements are those that which “embody
adjustment of details carrying out well-established national policies and tradition,
involving arrangements of a more or less temporary nature.”29
Foreign Loan. There are three broad categories of agreements which do not
fall within the realm of the Vienna Convention on the Law of Treaties and Executive
Order No. 459, namely foreign loans, grants and commercial contract. These are
governed by domestic law.
Section 20. The President may contract or guarantee foreign loans on behalf
of the Republic of the Philippines with the prior concurrence of the Monetary
Board, and subject to such limitations as may be provided by law. The Monetary
Board shall, within thirty days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its decision on applications for
loans to be contracted or guaranteed by the Government or government-owned
and controlled corporations which would have the effect of increasing the
foreign debt, and containing other matters as may be provided by law.
Foreign loans are generally entered into by the Department of Finance. Other
Departments, including the DFA, may conclude them only with the endorsement
from the finance department. As the Constitution prescribes a distinct negotiation
and approval process, foreign loan agreements do not undergo the usual treaty
ratification procedure.
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Philippine Treaty Law and Practice
In the authoritative book Modern Treaty Law and Practice, Anthony Aust describes
the following as agreements which are governed by domestic law even if concluded
between states:
States can also contract with each other under domestic law. They may do so if the subject
matter is exclusively commercial, such as the purchase of commodities in bulk… If a state
leases land from another state for an embassy there will usually be an instrument under
domestic law, such as a lease, though this may be granted pursuant to treaty… Treaties
concerning loans may provide that the contractual arrangements for the loans shall be
governed by the law of the lender state.36
Signing of other types of MOUs whose texts indicate intent to be bound should
require prior special authority.
The following shall not be required Full Powers or written authorization prior
to negotiating or signing an international agreement:46
B. Negotiations
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The lead office or agency then convenes a meeting of the members of the
negotiating panel prior to the commencement of negotiations for the purpose of
establishing the parameters of the negotiating positions.47 No deviation from the
agreed parameters shall be made without consultations with the members of the
negotiating panel.48
In the case Pimentel vs. Executive Secretary,49 the Supreme Court clarified that
signing and ratification are two separate and distinct steps in the treaty-making
process:
If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and
for the purpose of symbolizing the good faith of the parties; but, significantly, it does not
indicate the final consent of the state in cases where the ratification of the treaty is required.
The document is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring home to his own
state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an opportunity
to refuse to be bound by it should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
OLA then prepares the draft memorandum for the President, for the signature
of the Secretary of Foreign Affairs, recommending the ratification of the signed
agreement. If the agreement requires Senate concurrence, a draft letter-endorsement
from the President to the Senate President is enclosed.
47 Ibid., Section 5.
48 Ibid.
49 G.R. No. 158088 (2005).
The original agreement is deposited with the Foreign Service Institute’s Carlos
P. Romulo Library, which serves as the archives of these agreements and other papers.
Under our Constitution, the power to ratify is vested in the President, subject to the concurrence
of the Senate. The role of the Senate, however, is limited only to giving or withholding its
consent, or concurrence to the ratification. Hence, it is within the authority of the President
to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in
its behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via a writ of
mandamus.
The Senate does not ratify a treaty. It concurs in the President’s ratification of
a treaty.50
The policy papers should contain information about the agreement that could
address the frequently-asked questions during committee hearings, such as the nature,
objective and other highlights of the agreement, its negotiating history, and the number
of countries that have ratified the agreement, if it is multilateral in character. It shall
likewise identify the benefits and relative importance of the agreement to the country.
The First Reading consists of reading the title of the treaty, after which the
Senate President transmits it to the Committee on Foreign Relations. The committee
has 15 members. Of the 15 members, ten seats are reserved for the majority party
and five to the minority. In practice, every committee meets once a month. The
Rules of the Senate require that notice of meeting, including the agenda, place and
time of the meeting, shall be given three days in advance to committee members.
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The Third Reading is limited to the reading of the title of the treaty. No
treaty is considered concurred in by the Senate unless it has passed three readings
on separate days, and printed copies are distributed to the Senators three days
before its passage, except when the President certifies to the necessity of its immediate
concurrence to meet a public calamity or emergency. The treaty is then submitted to
final vote by yes and no. The votes of at least two-thirds of all the Members of the
Senate are required for concurrence to a treaty.
F. Declaration or Reservation
A unilateral statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that State.55
Upon its receipt of the Instrument of Ratification (and the Senate Resolution
concurring in the ratification made by the President, if applicable), OLA notifies
the concerned offices and agencies of the date of signature of the Instrument of
Ratification as well as the date of the Senate Resolution, if applicable.
OLA transmits a Note verbale to the embassy of the other contracting State,
or the international organization, notifying the latter of the ratification of the
agreement in order to determine the date of its entry into force.
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An agreement that provides that it will enter into force upon signature is
considered as entering into force provisionally. Provisional entry into force is allowed
only if it is shown that a pressing national interest will be upheld. In consultation
with concerned agencies, the DFA determines whether an international agreement
or any amendment thereto, shall be given provisional effect.57
This study is a modest attempt at documenting the treaty law and practice at,
and from the perspective of, the Philippine Department of Foreign Affairs.
The complexity of this problem has never been investigated and continues to
generate confusion in the application of these principles, without scrutiny.
Incorporation (or internalization) has given rise to the dual character of these
principles. They remain in the nature of international law operating on the
international plane governing the relations of States and other subjects of international
law. At the same time, they are a category of national law binding upon subjects of
Philippine law. The former may be referred to as objective international law and the
latter Philippine practice of international law. Their respective modalities of operation
in each legal system are not interchangeable; failure to observe this distinction
resulting from their interchangeability becomes the crux. In particular, the application
of these principles as national law in the context of international law operating on
the international plane would give rise to an anomaly in judicial reasoning, as
exemplified in the application of pacta sunt servanda. This principle of general
international law mandates that “Every treaty in force is binding upon the parties to
it and must be performed by them in good faith.”1 The ponencia in Tañada vs. Angara2
invokes this principle as “part of the law of the land” in the Incorporation Clause, a
case in which the very constitutionality of a treaty is under attack and the Supreme
* Professorial Lecturer; Former Dean and Professor of Law, University of the Philippines College of Law.
1 As codified in Article 26 of the Vienna Convention on the Law of Treaties.
2 272 SCRA 18, at 66 (1997). This case pertains to the constitutionality of the Agreement Establishing the World
Trade Organization (WTO) and the annexed agreements.
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An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
Court is called upon to exercise its review power which empowers it to strike down
a treaty as unconstitutional or invalid.3
The heart of the enigma lies in the fundamental problem that the Incorporation
Clause is designed by the Constitution as the transformative process by which a
body of principles in objective interactive law becomes national law, but the identity
of these principles as individualized is not known. It is a serious deficiency of a
normative system to institute norms or principles as law, and in the same process
what is constituted as law is deprived of its precondition of legality, namely, the
individual identity of the principles in question, which lends it the necessary element
of enforceability and effectiveness.
law of the land.” The category is provided as a criterion for identifying the operative
rules which embody rights and duties. It makes no sense in having this category
without individualizing the principles within its scope and there is no sense having
the individual principles identified in the absence of such category. Categorization
and individualization are integral to the whole, useless each without the other.
This outlook gives clearer light to the view that the Incorporation Clause
requires the exercise of the implied authority to identify the operative rules in terms
of specific rights and duties by way of compliance with the constitutional mandate
that the “generally accepted principles of international law” be made part of Philippine
law. In other words, the Incorporation Clause being non-self-executory, there arises
the duty to effectuate it, which leads to its execution through the identification of
the individualized principles as thus determined as national law, and in the same
process applies them in the resolution of a legal dispute.
4 90 Phil. 70 (1951).
5 As provided in the 1973 Constitution.
6 177 SCRA 668 (1959).
7 In denying the issuance of travel documents to the petitioners, the Court is apparently mindful of the restriction
to this right under the International Covenant on Civil and Political Rights, pertaining to national security and
public order. See Article 12(2) and (3) of the Covenant.
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An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
How is the date of effectivity of these rules determined? Do they take effect
simultaneously with the Incorporation Clause as part of the Constitution? If so, do
they take effect in the absence of their identity and substantive content?
If the individualized rules or principles derive the date of effectivity from the
promulgation of the Supreme Court decision in which they are identified as national
law under the Incorporation Clause, it may appear that their nature as operative
rules comes into existence only after the fact, i.e., after the situation they are intended
to govern has taken place. Necessarily, in effect, they are made to govern such a
situation by the retroactive application of the Court’s decision, in contravention of
the fundamental principle of legality.
membership in the society of nations. Upon the admission to such society the state
is automatically obliged to comply with these principles in relation with other states.
The real world may instead be reflected in the perspective of the Permanent
Court of International Justice as expressed in the Lotus Case (PCIJ, Series A, No. 10,
1927, p. 18), as follows:
International law governs the relations between States. The rules of law binding
upon States therefore emanate from their own free will as in conventions or by
usages generally accepted as expressing principles of law and established in order to
regulate the relations between those co-existing independent communities with a
view to the achievement of common aims.
This may have been the context of the binding character of the principles of
international envisaged by Guinto. As a departure from this vantage point, the
purpose of the Incorporation Clause is to internalize the principles of general
international law into Philippines law, insofar as they are identified in their
individualized nature. It is as national law that in domestic jurisdiction they create
rights and duties binding on subjects of Philippine law. The transmutation of these
principles into Philippine law gives way to the following consequences:
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An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
We hold that the Bill of Rights under the 1976 Constitution was not operative
during the interregnum. However, we rule that the protection accorded to individuals
under the Covenant and the Declaration remained in effect during the interregnum.11
Absent the Incorporation Clause, Republic could not have applied human rights
protection as national law derived from “generally-accepted principles of international
law.” It applies the Declaration, or its constituent rights, (a) as customary international
law and (b) not in the interest of Filipinos as citizens but as human beings, by these
two factors signifying that Republic is applying objective international law on the
international plane, not as Philippine law — the first phenomenon of its kind in
Philippine jurisprudence.
It is not clear how the protection under the Covenant would apply. In invoking
it, Republic may be understood to mean that protection becomes operational on account
of breach of obligations under the Covenant. But under the Covenant the relevant
approach may consist in the invocation of State responsibility. Necessarily, this is to
be addressed to the State Party who committed the internationally wrongful act.
Republic fails to recognize this problem.
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An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
It must be underscored that what Republic means in reference to the legal status
of Filipinos is that they are beneficiaries in human rights treaties which are concluded
by States as subjects of international law. It is true that individual natural persons may
become subjects or persons of international law but only under conventional
international law, i.e., by treaty concluded by States, which define their rights and
obligations. It is only by this process that they become bearers of international
personality.
Agustin vs. Edu13 relates itself to the Incorporation Clause in the following manner:
international conventions which are already binding on the Philippines as State Party
are subsequently subsumed under the Incorporation Clause.
Philippine practice in this sense has the effect of importing treaty norms to the
regime of Incorporation Clause principles, unmindful of the nature of these principles
as customary or general international law, in contrast to the binding character of
conventional or treaty norms as limited to the parties to it.
1. Out of the whole corpus of general international law, the Vienna Convention
on the Law of Treaties creates the category of peremptory norms (jus cogens) which
has acquired supremacy over treaties concluded in conflict with such norms. They
have become the standard of validity of treaties. Article 53 of this Convention
defines peremptory norms and describes their binding character with respect to
treaties, thus:
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An Essay on the Incorporation Clause
of the Constitution as a Juridical Enigma
2. Principles or norms that embody erga omnes obligations are said to prevail
over those which bind one State in relation to another State. In the Barcelona Traction
Case, the ICJ declares:
3. Obligations of Member States under the Charter of the United Nations are
covered by the supremacy clause of Article 103. It provides:
In 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
agreements, their obligations under the present Charter shall prevail.
These obligations under the UN Charter are derived from the principles which
are binding on Member States as well as on the UN Organization itself, among
which are:
17 See Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts prepared by the
International Law Commission.
18 ICJ Reports, 1970, pp. 3, 32.
19 Id.
20 See UN Charter, Arts. 2, 55 and 56.
(a) The principle that States 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.
(b) The principle that states shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice
are not endangered.
(c) The principle concerning the duty not to intervene in matters under the
domestic jurisdiction of any state, in accordance with the Charter.
(e) The duty of States to cooperate with one another in accordance with the
Charter.
What may appear as in the theory of actio popularis is the formulation of the
international Law Commission under its Draft Articles referred to above. Draft
Article 33 defines the scope of the obligation of the responsible State as including
those owed “to the international community as a whole.” A State injured by an
internationally wrongful act, under Draft Article 42, is entitled to invoke the
responsibility of another State on account of such act “if the obligation breached is
owed to … the international community as a whole.” It becomes an internationally
wrongful act not only against one State but injurious to the interest of the international
community as a whole.
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of the Constitution as a Juridical Enigma
V. Concluding Note
The presentation in this essay is addressed to the problem as to the more
concrete identification of what are “generally accepted principles of international
law” which are constitutionally proclaimed as Philippine law under the Incorporation
Clause. It may serve to provide a guideline by which this category of national law
establishes its correspondence with relevant principles of general international law
in terms of their substantive content, in the face of failure in Philippine practice to
inquire into such correspondence, leading to arbitrary or whimsical assumption as
to what might be the substantive content of the Incorporation Clause principles as
determined by objective international law. It is an attempt to contribute to resolving
the enigma that is the Incorporation Clause which declares that something is
constituted as law, without telling us what it is in operational identity: In one corner,
the Constitution hides a law that is non-law in public knowledge.
On the other hand, the World Trade Organization (WTO) through its Sanitary
and Phytosanitary Safeguards (SPS) Treaty and the interpretations of its Appellate
Body, while not necessarily disagreeing with the Precautionary Principle or its
*
Preliminary version, presented during the Third Asian Law Institute (ASLI) Conference: The Development of
Law in Asia: Convergence versus Divergence, May 25 to 26, 2006, East China University of Politics and Law,
Shanghai, Peoples Republic of China.
**
Dean and Professor, College of Law, University of the Philippines; Professorial Lecturer, Department of
Constitutional Law, Philippine Judicial Academy. The author invites comments through marvic.leonen@mac.com.
30 IBP JOURNAL
D EFINING R EGUL ATORY S PACES :
Precautionary Principles, Regulatory Diversity
and the SPS Treaty of the WTO Agreement
objectives, has effectively limited its application. This is so because of the WTO’s
concern that these measures may be used to unjustly or arbitrarily discriminate
between goods or services on the basis of their origin or that these measures could
be used as a disguised restriction to trade. In the WTO-SPS version, the
Precautionary Principle is precise and limited to conditions stated in Article 5
Paragraph 7 of the treaty.
The range of options to address perceived harm to human, animal, plant life
and health as well as their ecologies therefore is now limited. Only limited regulatory
diversity is allowed. The extent of this limit is mediated by science. More specifically,
in the context of the WTO, the limit is determined by the Appellate Body’s tolerance
of scientific interpretation. The current approach therefore transplants the politics
of who can do more science, the availability of scientific analysis, and the dynamic of
ownership of scientific approach into this area of international legal interpretation.
Commentators accept that there are at least four elements to this principle.3
First, there must be appreciation of a degree and certainty of a danger that justifies
a regulatory response. Second, there must be some understanding of the certainty
of the perceived harm and the taking of a regulatory measure. Third, there must be
some regulatory response. Finally, it is generally understood that this regulatory
response is provisional and may be subject to better certainty in the nature and
certainty of the risk and the effectivity of the measures that have so far been taken.
1
Rio Declaration on Environment and Development, Annex 1, principles, 15 U.N. Doc. A/CONF.151/5/Rev. 1
(1992), reprinted in 31 I.L.M. 874, 879. Referred to as the Rio Declaration.
2
See for instance the reviews in Applegate, John S., The Taming of the Precautionary Principle, 27 Wm. and
Mary Environmental L. & Policy Rev. 13 (2002) and Sunstein, Cass R., “Beyond the Precautionary Principle,”
Chicago Public Law and Theory Working Paper No. 38, January 2003
(available at http://www.law.uchicago.edu/academics/publiclaw/index.html last visited May 2006).
3
Applegate, note 2, at 18 to 20.
The first element seems to suggest two dimensions. The body that takes a
regulatory response must have some appreciation of the level of the seriousness of
the harm. Furthermore, there must be acceptance of the quantity and quality of the
information that provides the basis for the assessment of the possibility of occurrence
of such harm. The acceptance of seriousness of the harm – as opposed to the harm
itself – is essentially subjective. The seriousness of losing a threatened bird specie is
different from establishing the fact that it is threatened. The seriousness of losing
ecosystems in favor of producing mineral wealth, perhaps in an economic sense, is
different from establishing the fact that mining does affect the environment.
The possibility of the harm happening may not be as subjective and may be
the subject of science and scientific methodology. It is basically a matter of risk
assessment.
Claims can be as simple as whether mature spotless apples carry bacteria causing
fire blight or whether riding a motorcycle increases the chance of accidents to the
rider. It can be as complex as whether residues in food of specific growth hormones
artificially introduced in cattle have carcinogenic effect. In all these examples, one
can imagine the issues relating to whether there is enough science, how specific they
would be, the probabilities involved and how conclusive their findings. The challenge
for policy makers therefore is less about how to assess but how people get informed,
how to mitigate their impact and when the harm happens, how to apportion the
liabilities.5 Risk assessment therefore is different from risk communication and risk
management. All these can involve science.
4
Smith, S, Philipps, P.W.B., Kerr, W.A., and Khachatourians, G.G.
Regulating the Liabilities of Agricultural Biotechnology 9, (CABI Publishing, 2004).
5
See Smith et al. at note 4, 9.
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and the SPS Treaty of the WTO Agreement
Even with the use of the best available scientific information, there will always
be the inherent uncertainty of both the risk and the effectivity of mitigating measures.
The Precautionary Principle addresses and hopes to increase the tolerance for
uncertainty for purposes of taking regulatory measures to address a perceived harm
and its imminence.
The third element therefore requires the regulator to take a response. This
may not always mean a prohibition against the human product or intervention.
Depending on the quality of understanding and the degree of acceptance of the
risk—the tolerance—there can be as many policy options as are creatively and politically
possible. In other words, the precautionary principle does not sanction an attitude
that looks at any innovation with suspicion.6 At the very least, it declares that
uncertainty—even scientific uncertainty—should not be used as an excuse from taking
a cost effective measure to address a perceived harm on the environment. In other
words, it is indeed better to be safe than sorry.
The fourth element is implied from the principle. Since the measures are
taken on the basis of the best available information, or even none at all, it can be
argued that further calibration of the response would have to follow better
information. Regulatory bodies may also learn from doing. Hence the process is
iterative and the measures provisional.
The precautionary principle does not define the required seriousness of the
harm, its probability of occurrence, the measures that are to be taken and the level
of certainty of the information on the basis of which they are taken. It does not also
define the processes that must be put in place to learn from the implementation of
the measures and for the regulatory bodies to update themselves in terms of the
information taken. Hence, it is quite vague and provides an approach rather than
clear directions to those who adopt it.
The WTO’s Appellate Body has dealt with unilateral environmental measures
in the past that have an international impact.
6
But see Cass, Sustein at note 2 where he argues that the precautionary principle in some of its versions do not
make sense because among others it assumes the benign nature of ecosystems while also assuming the pathogenic
nature of any human intervention.
The Appellate Body read article XX of the GATT as an exception to the disciplines
required in Article XI and article III. More specifically, it said that the GATT does
not prohibit domestic measures that have an international effect when it “relates to
the conservation of exhaustible natural resources.”
However, noting the chapeau of article XX, it declared that the regulation was
not WTO compliant as applied. Evidence showed that there was differential
treatment in the compliance periods given to different member countries. The
Appellate Body also found that there was an implied requirement that turtle excluder
devices (TED) be used. It said that there were other relevant conforming means of
shrimp farming which seemed not to have been recognized by the US inspectors.
Hence, it found this practice a disguised restriction to trade and an unjustified
discrimination against other shrimp farmers.
In the United States Shrimp/Turtle case, the effect of specific shrimp farming
methods on the further decline in the population of threatened turtle species was
not raised as an issue. There was therefore no need to examine the scientific
justification of this claim upon which the US measures were based.
In the EC Asbestos case, the WTO Appellate Body took cognizance of the
environmental consequences of the use of a product as part of its physical characteristic
in determining whether it was a like product within the context of Article III of the
GATT. The measure in question was a ban of all asbestos products by France.
Canada’s complaint was, among others, based on the alleged discriminatory treatment
between asbestos products and “like or directly substitutable goods” consisting of
insulating material made in France. Since the carcinogenic potential of asbestos
products had clear scientific basis, the Appellate Body ruled that although the
economical utility of both products may be the same, it was considered different for
purposes of regulation under Article III Paragraph 4 of the GATT.
The scientific basis relating to the carcinogenic potential of asbestos does not
seem to have been a grave issue in the EC Asbestos case.
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Precautionary Principles, Regulatory Diversity
and the SPS Treaty of the WTO Agreement
The SPS7 treaty clarify the limits of sanitary and phytosanitary8 measures
taken by a WTO member. To prevent the abuse of these measures, at least three
approaches are taken. Abuse of course would result when there is a showing that
there is an unjustified or arbitrary discrimination or when there is a showing that
the measures are disguised restriction to trade.
First, the members have committed that all sanitary and phytosanitary measures
are to be established and maintained only with sufficient scientific justification.9
Second, the treaty allows international scrutiny with respect to whether there is
discrimination among similar products. 10 Third, members should not impose
restrictions on products of international origin that it would not impose on the same
products internally.11 This paper discusses in detail the first approach.
WTO Appellate Body cases affirm that the level of protection is still within
the prerogative of a Member. This is principally based on the preamble14 and Article
7
Agreement on the Application of Sanitary and Phytosanitary Measures
8
SPS Treaty, Annex A, paragraph 1 defines sanitary or phytosanitary measure as “Any measure applied: (a) to
protect animal or plant life or health within the territory of the Member from risks arising from the entry,
establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms; (b) to
protect human or animal life or health within the territory of the Member from risks arising from additives,
contaminants, toxins or disease causing organisms in foods, beverages or feed stuffs; (c) to protect human life
or health within the territory of the Member from risks arising from disease carried by animals, plants or
products thereof, or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage
within the territory of the Member from the entry, establishment or spread of pests.”
9
SPS Treaty, article 2, paragraph 2: “Members shall ensure that any sanitary or phytosanitary measure is applied
only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and
is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of article 5.”
10
SPS Treaty, article 5, paragraph 5: “With the objective of achieving consistency in the application of the concept
of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal
and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers
to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on
international trade.”
11
SPS Treaty, article 5, paragraph 6: “Without prejudice to paragraph 2, article 3, when establishing or maintaining
sanitary or phystosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection,
Members shall ensure that such measures are not more trade restrictive than required to achieve their appropriate
level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.
12
SPS Treaty, Annex A, paragraph 5 refers to this as both the “appropriate level of sanitary or phytosanitary
protection” and is the same as “acceptable level of risk.”
13
Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 20
October 1999, para. 200. The definition of “measures” are quite broad. In this case, it was used as a term for
an instrument chosen by a state to attain or implement an objective.
14
SPS Treaty, first preambular clause: “Reaffirming that no Member should be prevented from adopting or
enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that
these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable
discrimination between members where the same conditions prevail or a disguised restriction on international
trade.
2, Paragraph 115 of the SPS treaty. However, the level of protection must now be
explicitly stated by the state imposing the measure. It should not simply be implied
and thus derived by a dispute panel on the basis of the measures that are before
them.
In the Australia—Salmon18 case and for the first type of risk assessment, this
provision was interpreted to require that the member must: (1) identify the disease
or the adverse effect as well as the potential biological and economic consequences
associated with the disease; (2) evaluate the likelihood of entry, establishment or
spread of the disease; and (3) evaluate the likelihood of entry, establishment or
spread of the disease according to the measure adopted. In addition, the member
adopting the measure should be clear with respect to the desired level of protection.
15
SPS Treaty, article 2, paragraph 1: “Members have the right to take sanitary or phytosanitary measures
necessary for the protection of human, animal or plant life or health, provided that such measures are not
inconsistent with the provisions of this agreement.”
16
SPS Treaty, article 5, paragraph 1: “Members shall ensure that their sanitary or phytosanitary measures are
based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or
health, taking into account risk assessment techniques developed by the relevant international organizations.”
17
Appellate Body Report, Australia – Measures Affecting Importation of Salmon, supra footnote 19, at para. 130.
18
Ibid., at para.121.
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and the SPS Treaty of the WTO Agreement
19
See Appellate Body Report, EC – Measures Concerning Meat and Meat Products (Hormones),
WT/DS26/B/R, WT/DS48/AB/R, adopted on 16 January 1998, para. 189; Appellate Body Report, Australia
– Measures Affecting Importation of Salmon, supra, footnote 19, at para. 123.
20
Ibid.
21
Ibid., at para.190.
22
SPS Treaty, article 9, paragraph 1: “Members agree to facilitate the provision of technical assistance to other
Members, especially developing country Members, either bilaterally or through the appropriate international
organizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure,
including in the establishment of national regulatory bodies, and may take the form of advice, credits, donations
and grants, including for the purpose of seeking technical expertise, training and equipment to allow such
countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate
level of sanitary or phytosanitary protection in their export markets.”
23
SPS Treaty, article 5, paragraph 7: “In cases where relevant scientific evidence is insufficient, a Member may
provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including
that from the relevant international organization as well as from sanitary or phytosanitary measures applied by
other Members. In such circumstances, Members shall seek to obtain the additional information necessary for
a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a
reasonable period of time.”
“De novo” review implies that a dispute panel disregards the scientific claims
and evaluation made by both parties and conducts its own inquiry into the matter. A
“reasonable deferential” attitude on the other hand means that the panel will not
conduct its own inquiry and simply depend upon the evaluation of the parties to the
dispute. Consistently, the Appellate Body has declared that the panel has the
discretion to determine the sufficiency of the claims made by the parties either by
itself, through the employment of individual experts or the creation of expert working
groups. In other words, the sufficiency of the scientific analysis and the conclusions
made from various studies is left to the discretion of the panel. The panel also has
the discretion to determine whether in fact, the scientific information is “insufficient”
for purposes of Article 5 Paragraph 7 of the SPS treaty.
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and the SPS Treaty of the WTO Agreement
Conclusion
The current content of the SPS Treaty within the WTO Agreements definitely
defines the regulatory space for its members, at least with respect to measures that
affect importation of goods and services coming from outside their borders. In a
sense, the principle limits the sovereign options of governments, encourages them
to increasingly deal with multilateral international organizations concerned with the
formulation of minimum sanitary and phytosanitary standards and encourages the
use of more science in mandatory risk assessments on which to base these measures.
In the formulation of these minimum standards, states expectedly would use the
latest scientific research and analysis to support their proposals.
The Revised CG Code is supposedly the result of lobbying efforts from both
the Philippine Stock Exchange (PSE) and the Institute of Corporate Directors (ICD)
to incorporate reforms in the original SEC Code coming from hard lessons learned
by directors and officers of covered corporations, as well as from the invaluable
experiences of corporate governance practitioners under the regime of the original
SEC Code. Our review of the Revised CG Code, and the initial feedback received
from the field, is, to say the least, one of disappointment — Sayang!
The feeling that one is left with after reading the Revised CG Code is that the
great experiment of ushering into our jurisdiction modern corporate governance
principles and practices has abruptly come to an end; and that we in the Philippines
are retreating back to old, familiar grounds — the governance principles espoused
under the century-old principles embodied in the Corporation Code. Indeed, what
stand out from the provisions of the Revised CG Code are not what new cutting-
edge concepts or provisions were introduced, but rather what seminal provisions
have been taken out from the provisions of the original SEC Code.
* The discussions contained in this paper are better appreciated when read in connection with the author’s book
THE L AW AND P RACTICE ON : P HILIPPINE C ORPORATE G OVERNANCE (Holy Angel University Press, 2009),
and is issued formally as a supplement to said publication.
** Dean of the Ateneo de Manila School of Law, Professorial Lecturer in Corporation Law and Sales; Senior
Partner, Villanueva Gabionza & De Santos Law Offices.
1 SEC Memorandum Circular No. 6, series of 2009.
2 SEC Memorandum Circular No. 2, series of 2002.
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The covered corporations under the Revised CG Code seem to be the same as
those covered in the original SEC Code, which originally read as follows: “this Code
. . . shall be applicable to corporations whose securities are registered or listed,
corporations which are grantees of permits/licenses and secondary franchise from
the Commission and public companies. This Code also applies to branches or
subsidiaries of foreign corporations operating in the Philippines whose securities
are registered or listed.”
The original SEC Code then separately defined “public companies” to mean
“any corporation with a class of equity securities listed in an Exchange or with assets
in excess of Fifty Million Pesos (P50,000,000.00) and having two hundred (200) or
more stockholders each holding at least one hundred (100) shares of a class of its
securities.” The original SEC Code covered the following sets of “covered
corporations,” thus:
which meant that the principles of corporate governance are made to apply, not to
all corporations, but only those — which for lack of a better term, — we have dubbed
as “public companies” and by reason of which the impact of their business enterprises
on the public are deemed to be vested with a certain degree of “public interest”
beyond those of their shareholders. It is the fact that the business of a public company
affects not only the shareholders, but other components of the market or society, by
which the principles of the Stakeholder Theory are intended to apply.
The coverage clause of the Revised CG Code seems to have expanded the
coverage of what are within “covered corporations” when it embedded the definition
of “public companies” within said coverage clause, which now reads as follows:
Likewise, the sequencing seems to imply that the branches and subsidiaries of
foreign corporations operating in the Philippines which “are grantees of secondary
licenses from the Commission” are also covered by the mandatory provisions of the
Revised CG Code. This would mean all branches of foreign corporations are covered
since all such branches have been issued licenses to do business in the Philippines by
the SEC. By virtue of their local operations in the Philippines, foreign companies
would have to implement the provisions of the Revised CG Code to matters that are
happening in their headquarters, since that is where the Boards and Management of
foreign companies are located.
Finally, because the Revised CG Code has retained within its coverage those
companies which “are grantees of secondary licenses from the Commission,” then it
must stand to reason that the exclusive enumeration of those falling within this
category under SEC Memorandum Circular No. 16, s. 2002,4 still applies, namely:
(a) finance companies; (b) investment houses; (c) brokers and dealers of securities;
(d) investments companies; (e) pre-need companies; (f) stock and other securities
exchanges.
The point being made is that by retaining the coverage of the principles of
corporate governance to public companies, or at least by expressly stating that its
mandatory provisions are applicable only to “covered corporations” (“All covered
corporations shall establish and implement their corporate governance rules in
accordance with this Code”), the Revised CG Code is making it clear that it recognizes
the public interests that pertain to covered corporations, as distinguished from all
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other private and non-public companies whose business enterprises do not affect
public interest, or whose business enterprises only affect private interests, mainly
their stockholders.
What is truly astounding in the Revised CG Code is the dropping of all reference
to “stakeholders” and the “Stakeholder Theory.”
The primary issue that ought to be settled with the coming into effect of the
Revised CG Code is the obvious question – “Has there been an abandonment of the
Stakeholder Theory, and a return to the near-exclusive application of the doctrine of maximization
of shareholders’ value?”
Under the original SEC Code, the term “Corporate Governance” was defined to
embody the Stakeholder Theory, thus —
The recognition that it was not only the shareholders of a public company, but
also “creditors and other stakeholders” as having legal and business standing to “ensure
that management enhances the value of the corporation,” officially ushered within the
institution of Philippine public companies the Stakeholder Theory or the theory of
enhancing the value of the corporation on a long-term basis for the benefit of all
those affected by its business enterprise, as distinguished from the Shareholder Theory
or the doctrine of maximization of shareholder value.
5 Sec. I(B), original SEC Code of Corporate Governance; reformatted and with emphasis supplied.
6 IC Circular No. 31-2005, 26 September 2005, which defines “Corporate Governance” under Sec. I(1) as
follows: “the system by which companies are directed and managed. It influences how the objectives of the
company are set and achieved, how risk is monitored and assessed, and how performance is optimized.”
1. GENERAL RESPONSIBILITY
The use of the term “to foster the long-term success of the corporation,” which normally
would have the same value and meaning as “enhancing the value of the corporation,” is
one of the hallmarks of the stakeholder theory to focus Board and Management
efforts toward long-term goals that protect the interests of all, if not most
stakeholders, rather than the short-term seeking of profits which only enhances the
interests of current shareholders, as they trade their shareholdings in the stock
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market. The context of the afore-quoted provision that juxtaposes the “long-term
success of the corporation” only in line with “the best interest of its stockholders” may be
interpreted to mean an abandonment of the stakeholders theory under the Revised
CG Code, and a return to the much narrow path offered by the maximization of
shareholders’ equity as the only object of corporate governance.
Furthermore, under Section II(5)(b) of the original SEC Code (on “Duties and
Functions of the Board”) which provided that “to insure a high standard of best
practice for the company and its stakeholders, the Board should conduct itself with
utmost honesty and integrity in the discharge of its duties, functions and
responsibilities,”11 the current Article 2(F)(2) of the Revised CG Code has limited
such duties and functions only “for the corporation and its stockholders.” 12 The
revision effected under the Revised CG Code may be taken to mean that it is the
current position of the SEC that the duties and functions of the Board of covered
corporations, as well as their fiduciary obligations, now pertain solely to the company
and its shareholders, a complete abandonment of the Stakeholder Theory.
The duty imposed upon the Board of Directors of covered corporations under
Section II(5)(b) of the original SEC Code to identify their stakeholders and the duty
of accounting owed to them, thus —
has now been rendered to be merely a communication process under Article 2(F)(2)
of the Revised CG Code to cover only the following:
basis,”15 has been limited under Article 2(L) of the Revised CG Code only to the
duty to “work fairly and objectively with the Board, Management and stockholders.”
The provision under Section IV (Accountability and Audit) under the original
SEC Code, referring to the Board’s obligation to stakeholders to —
has effectively been replaced in the Revised CG Code with the provision that reads:
xxx
x x x.17
All the foregoing indicate that the Revised SEC Code has taken a “rejection
tone” of the Stakeholder Theory, and one may be led to the conclusion that has seen
our Supreme Court holding that in the realm of Philippine Corporation Law, the
Board of Directors and Management of every corporation owe fiduciary duties to
the stockholders, and their main obligation is “to seek the maximum amount of
profits for the corporation.”19
15 Emphasis supplied.
16 Reformatted and with emphasis supplied.
17 Reformatted.
18 Reformatted and with emphasis supplied.
19 Premium White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103 (1993).
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On the broad issue of whether the Stakeholder Theory no longer has any formal
application in Philippine jurisdiction, the answer is easier to give: “Definitely not!”
It must be recalled that it was not the SEC that ushered the Stakeholder Theory
in the Philippines with the promulgation of the original SEC Code, but rather the
Bangko Sentral ng Pilipinas (BSP), with the promulgation a year earlier of a series of
circulars, starting with BSP Circular No. 283, series of 2001, that defined who the
stakeholders are in banking institutions and requiring of such institutions, their
Board and Management, to exercise a high degree of diligence, and not just the
diligence of a prudent man. The Supreme Court has, for more than a decade before
the issuance of the BSP Circulars on Corporate Governance, characterized banking
institutions as being “vested with public interest,” requiring of them, their Boards of
Directors and officers, the exercise of diligence of the highest order, not only to
their stockholders, but primarily to their clients, depositors and members of the
public who deal with their facilities.
With the promulgation of the Revised CG Code, do we then take it that in all
other public companies, other than banking institutions, insurance companies, and
insurance intermediaries, the Stakeholder Theory is thereby rejected as the capstone
of corporate governance, with the affirmation that the maximization of shareholders’
value becomes once again the rule of thumb in measuring the duties, responsibilities
and extent of personal liability of directors and officers of covered corporations?
It must be stated formally that with the clear dropping of the Stakeholder
Theory from the definition of Corporate Governance, and dropping of all references to
stakeholders under the Revised CG Code, there is a strong argument before courts
of law that the Stakeholder Theory as the legal basis of accountability for directors
and officers of covered companies (except for banks, insurance companies and
Firstly, the official and unofficial pronouncements coming out of the responsible
officers of the SEC do not indicate that they are pursuing a new corporate governance
regime that rejects the Stakeholder Theory. Commissioner Raul J. Palabrica (who is
credited to be the main author behind the revisions), writes in his column that the
coverage of the Revised CG Code continues to be the same as under the original
SEC Code, and that —
In other words, the coverage of the Revised CG Code for public companies
continues to acknowledge that it is the nature of the business enterprises of the
covered companies (and not just their corporate medium) that imbues them with
public interest. This confirms that it is not just the shareholders who fall within
strictly intra-corporate relationships and are affected by the operations of the public
companies, but also those who have invested in the companies in some other form
(such as the case of policy holders, depositors, etc.), who receive protection under a
stricter corporate governance regime. This is affirmed in Article 2 of the Revised
CG Code, which provides as part of the “Rules of Interpretation” that —
The only problem created by the total dropping of the Stakeholder Theory
under the provisions of the Revised CG Code is that it has effectively limited the
22 Prime White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103, 110-111 (1993).
23 Philippine Daily Inquirer, 03 July 2009, at p. B5; emphasis supplied.
24 Reformatted and with emphasis supplied.
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The net result of the revision effected under the Revised CG Code is to
effectively narrow the coverage of who can claim to be stakeholders of a public
company, to a commercial end — that the directors and officers of a public company
owe a special duty to stockholders and other similar investors in the company to
maximize profits for the long-term success of the corporation.
Secondly, the revisions effected by the SEC under the final terms of the Revised
CG Code may be taken to mean that the SEC has dropped all reference to
stakeholders, not as a rejection of the Stakeholder Theory, but rather as a recognition
that primary jurisdiction over the covered corporations pertains primarily to the
corporate medium and the legal relationship that is created (i.e., the intra-corporate
relationship); and that the underlying business enterprise is not for the SEC to
supervise, but by the proper government agency so tasked under its charter.
For example, although all banks and insurance companies can only be operated
under a corporate medium, nevertheless, their underlying operations are primarily
under the control and/or supervision not by the SEC, but by the BSP and the IC,
respectively. It may be reckoned therefore that with the current version of the Revised
CG Code, the SEC has taken the position that it is the government agency tasked
with control and/or supervision of the industry that it is rightly vested with power,
and obviously it is in the best position to define the terms of the Stakeholder Theory
and determine those who are deemed to fall with the coverage of stakeholders.
In other words, the SEC has defined the meaning and coverage of “Corporate
Governance” under the Revised CG Code within the parameters that are clearly within
its administrative jurisdiction, i.e., within the intra-corporate relationships of every
covered corporation:
(a) Between the SEC and the company, represented by its Board of Directors;
(b) Between the Board of Directors and the stockholders;
(c) Between the Board of Directors and Management.
Within the realm of its special administrative jurisdiction, the SEC has, through
the Revised CG Code, defined the meaning and essence of Corporate Governance
for public companies in the manner and term it knows best — the maximization of
VOLUME 35 NUMBER 1 (AUGUST 2010) 49
Cesar L. Villanueva
The terms of the Revised CG Code indicate that the code recognizes, apart
from the stockholders of covered corporations, other stakeholders similarly situated
— investors, in line with its recognition that under the Securities Regulation Code
(SRC), it is the government agency that has been given direct supervision over public
companies, for the protection of stockholders and other debt- and securities-holders,
thus —
“To ensure a high standard of best practice for the corporation and
its stockholders, the Board should conduct itself with honesty and
integrity in the performance of, among others, the following duties
and functions: x x x Establish and maintain an investor relations
program that will keep the stockholders informed of important
developments in the corporation. If feasible, the corporation’s CEO
or chief financial officer shall exercise oversight responsibility over
this program.”28
The point being made is that the formal dropping of the Stakeholder Theory under
the Revised CG Code should not be construed to mean that the SEC, as the supervising
agency over all corporations in the Philippines, has rejected its application in our
jurisdiction, but that it leaves it to the best judgment of the proper government agency of
the particular industry or business sectors having jurisdiction to define the nature and
extent of how they wish to adopt such theory. As the SEC has defined principles of Corporate
Governance within the medium of public companies to cover the duties and obligations
of the Board of Directors and Management to mean the maximization of the value of the
investments of shareholders and other investors, so therefore other agencies, such as the
BSP and the IC, have the right to so define the parameters of what constitute good corporate
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governance within their industries and sectors that best suit the Stakeholder Theory
to their own specific circumstances.
This approach — that the corporate medium, apart from the underlying business
enterprise, is not deemed to be vested with public interest beyond those that have a
formal or commercial tie to it by way of equity or debt investment — seems to be in
conformity with the SEC’s mandate contained in its sub-charter, namely Presidential
Decree No. 902-A, which holds that:
It also means that the SEC has retreated (when compared to its original stance
under the original SEC Code) from a positive role as the government agency that
could imbue the corporate medium with the constitutional precept that although we
recognize the institution of private ownership and property rights and “the
indispensable role of the private sector,”29 we nevertheless declare that property
“bears a social function, and all economic agents shall contribute to the common
good,” and always “subject to the duty of the State to promote distributive justice
and to intervene when the common good so demands.”30
Thirdly, and perhaps the more important aspect when it comes to corporate
practitioners and their clientele, is that apart from the language of the original SEC Code,
the Supreme Court has in the field of jurisprudence, began to craft a doctrine of
“Corporate Responsibility” that recognizes the existence of the duties and obligations of
corporations, their Boards and Management, to sectors of society (apart from their
shareholders) who are affected by their operations.
Fairly recently, in Professional Services, Inc. v. Court of Appeals,31 the Supreme Court
held a hospital corporation liable for the medical malpractice or professional
With the SEC retreating from that challenge under the Revised SEC Code,
the great social experiment in imbuing Philippine public companies with a social
function that goes beyond the interests of their investors has been orphaned into
the other fields outside of Philippine Corporate Law. And I always thought that the
essence of “Corporate Governance” was in the term “corporate.”
32 Ibid, at p. 182.
33 Ibid, at p. 182, footnote 7.
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In Philippine Corporate Law, there are now two systems of promoting good
corporate governance, but ensuring that there is a check on the dominant role of the
majority stockholders.
First is the system of cumulative voting mandatory for all stock corporations
under Section 24 of the Corporation Code,35 which makes it mathematically possible
for minority shareholders to pool their voting powers to a pre-computed number of
nominees to ensure that they would have minority representation in the Board of
Directors. Consonant with this principle, Section 28 of the Corporation Code
provides that the majority stockholders have no power to remove a director elected
by cumulative voting except for cause.36
With the apparent abandonment under the Revised CG Code of the Stakeholder
Theory, and in fact an affirmation in its various provisions that the duties and
responsibilities of directors and management of public companies is owned to
stockholders and other investors, then the strengthening of the role of independent
directors, as occupying a quasi-public position (i.e., one that represents the “public
good” in Board proceedings) has taken a more meaningful role.
But unlike the original SEC Code which provided that failure to submit the
manual is the only infraction that is penalized by a fine, the Revised CG Code under
its Article 11 on “Administrative Sanctions” has expanded the penalty coverage to
all violations of the Code, thus:
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Fines and other penalties imposed by the SEC are serious matters, not only
because of the pecuniary repercussions, but more importantly under the Corporation
Code,40 and in the Revised SEC Code itself,41 a violation may constitute a ground
for the disqualification of a director, or constitute as “proper cause,” for his removal
by the requisite vote of stockholders.42
Although there is no doubt that the failure to comply with the requirement of
filing the manual is punishable under Article 11 of the Revised CG Code, it seems
difficult to see how any other “violation” thereof may be properly punished by a fine
of Php200,000 “for every year that a covered corporation violates the provisions of
this Code.”
Firstly, instead of the fine being imposed on every violation of the provisions of
the Revised CG Code, the penalty that is imposable is limited to “Php200,000 every
year.” This would come to the dubious end that a covered corporation may commit
various infractions under the Code, and only be liable to a maximum penalty of
“Php200,000 per year.”
39 Emphasis supplied.
40 Section 27 of the Corporation Code: “SEC. 27. Disqualification of directors, trustees or officers. – No person convicted
by final judgment of an offense punishable by imprisonment for a period exceeding six (6) years, or a violation
of this Code, committed within five (5) years prior to the date of his election or appointment, shall qualify as
director, trustee or officer of any corporation. (n)”
41 Article 3(E)(1)(iv) of the Revised SEC Code provides “The following shall be grounds for the permanent
disqualification of a director: x x x (iv) Any person who has been adjudged by final judgment or order of the
Commission, court, or competent administrative body to have willfully violated, or willfully aided, abetted,
counseled, induced or procured the violation of any provision of the Corporation Code, Securities Regulation
Code or any other law administered by the Commission or BSP, or any of its rule, regulation or order;”
Article 3(E)(2)(iii) of the Revised SEC Code provides that “The Board may provide for the temporary
disqualification of a director for any of the following reasons: x x x (iii) Dismissal or termination for cause as
director of any corporation covered by this Code. The disqualification shall be in effect until he has cleared
himself from any involvement in the cause that gave rise to his dismissal or termination.”
42 Section 28 of the Corporation Code: “SEC. 28. Removal of directors or trustees. – Any director or trustee of a
corporation may be removed from office by a vote of the stockholders holding or representing two-thirds (2/3)
of the outstanding capital stock . . . Provided, That removal without cause not be used to deprive minority
stockholders or members of the right of representation to which they may be entitled under Section 24 of this
Code. (n)”
Atty. Gerard M. Lukban, the SEC Secretary, was quoted as saying that “The
previous Code had provisions that use ‘may’. . . Here some were changed to ‘shall’
so they are no longer just recommendatory.”43 That would mean that every provision
of the Code that imposes an obligation with the use of the word “shall” would be a
violation of the Revised CG Code that would be punishable with the find under
Article 11 thereof.
Obviously, compliance with the above-indicated duty may find its expression
in the manual of corporate governance that a covered corporation submits to the
SEC. But if the manual duly submitted does not contain one or some of the items
enumerated, or what are submitted are not effective or complete, does that constitute
a violation of the Revised CG Code, triggering the imposition, after notice and
hearing, of the Php200,000 fine? Who is to judge what is “effective”?
Another example would Article 6(B) of the Revised CG Code which reads —
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If we were to presume that the clear intention under Article 11 is that the
penalty imposed would be personally against the offending director or officer, it
would have a chilling effect on the exercise of business judgment on the part of the
Board of Directors, and would even discourage qualified professional directors to
accept appointment to public companies simply because they are not certain exactly
what action or inaction would constitute punishable offense under said provision.
46 SEC. 144. Violations of the Code.—Violations of any of the provisions of this Code or its amendments not otherwise specifically
penalized therein shall be punished by a fine of not less than one thousand (Php1,000.00) pesos but not more than
ten thousand (Php10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five
(5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may,
after notice and hearing, be dissolved in appropriate proceedings before the Securities and Exchange
Commission; Provided, That such dissolution shall not preclude the institution of appropriate action against the
director, trustee, or officer of the corporation responsible for said violation: Provided, further, That nothing in this
section shall be construed to repeal the other causes for dissolution of a corporation provided in this Code.
xxx
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The Revised CG Code has introduced as one of the “Duties and Functions” of
the Board of Directors of a public company, the setting up of a system of dispute
resolution, thus:
xxx
xxx.
x x x .48
Perhaps the best way by which the SEC, being the government agency granted
control and supervision over corporate media, can further advance the way toward
an Alternative Dispute Resolution system for Philippine public companies is to set
up a formal ADR Panel that can have mandatory enforcement in matters pertaining
to conflicts or differences between corporations and their shareholders and investors.
In a study done for the Asian Development Bank on the ADR system of the
Philippines, it was determined that the most successful system is the Construction
Industry Arbitration Council (CIAC), which was mandated through the decree
48 Reformatted.
powers of Pres. Ferdinand Marcos, and has become a reliable manner of resolving
conflicts in the construction industry. The impetus behind the CIAC’s success lies in
two factors, namely, (a) that it was statutorily mandated, so that construction industry
players had no choice but to resort to arbitration and could not “rely” upon the slow
grind of judicial proceedings to stymie legitimate complaints or claims; and (b) the
arbitration process was being overseen by the construction industry’s own experts
and leading advocates, who understood the business and technical nuances of the
industry.
Even well-trained RTC commercial court judges are really no match to the
expertise that SEC officers, corporate and business practitioners have on issues and
intricacies arising within the Philippine public companies system. Perhaps the SEC
may oversee the establishment and operation of the “Public Companies Arbitration
Council” and making resort to PCAC arbitration mandatory through the issuance
of a formal SEC memorandum, pursuant to its “vast” quasi-legislative powers under
Section 72 of the Securities Regulation Code, thus —
xxx 50
49 Emphasis supplied.
50 Emphasis supplied.
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Conclusions
One of the fundamental issues arising under the original SEC Code’s
stakeholder doctrine, apart from recognizing that the Boards of Directors of public
companies owe duties and obligations not just to the shareholders but to various
stakeholders who are affected by the company’s business enterprise, was that the
original SEC Code found it difficult to provide a hierarchy of values by which directors
and Management of a covered corporation could properly measure compliance with
their varied duties to their stakeholders. In other words, the original SEC Code was
very good on broad principles ushering in the Stakeholder Theory, but was short on
particulars on how the directors were going to meet their duties and responsibilities
under such expanded constituencies.
We thought then that faced with such a challenge, it was ingenious for the SEC
to have provided in the original SEC Code that every covered corporation, in its
manual of corporate governance, was mandated to identify its considered stakeholders
and define the rights they may have against the company in the operation of its
business, thus —
Under the aegis of such provisions in the original SEC Code, it would ensure
to covered companies that as the Stakeholder Theory is formally adopted into
Philippine jurisdiction, it did not turn out to be an open-ended affair where the
Boards of Directors of public companies were not quite sure of the extent of their
duties and responsibilities under a system of expanded constituencies, and be able
to define for themselves precisely what they considered to be the extent of the
rights of such identified stakeholders.
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The reference to the dual categories of “the public” and “the private” as heuristic
tools is meant to underscore the reality that, from a certain perspective, these baskets
are in fact not so separate from each other,10 and that, instead of being separately
sealed or hermetically tight compartments, they are, in fact, quite porous and
intertwined. The law on contracts, for example, falls under the category of the
private and yet, no sooner do we start reading the provisions of the Civil Code than
we realize that “the law” on contracts is an amalgamation of intensely public policies
regulating entry, exit, as well as the terms and conditions of private contracting.11
The more we look at those private law subjects in law school, the more we realize
that they share more characteristics with public law than we have been made to
realize by the artificial categories of the curriculum. Ultimately, it turns out that
what we can do privately is parasitic on policies that always turn out to be directed
towards some public objective.
This reality is even more true in the case of labor law, which, among the general
categories of law taught in law schools and as a separate subject in the bar
examinations, is of a more recent vintage. This is evident in the provisions of the
Civil Code, which, as revised in 1950, had a “new” section on “Contract of Labor”12
10 See Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction”, 130 U. Pen. L. Rev. 1349
(1982).
11 A case in point is the Family Code, a subject taught as part of the civil law on private relations. But very little
in the Family Code is “private” in the traditional sense that it is the parties that are given the right to choose. To
be sure, most of the provisions in the code are state policies on property relations as well as entry and exit
mechanisms. Those aspects of family life that may fall under the category of private choice—selection of spouse,
number of children, decision to cohabit—are actually not regulated by the code.
12 ARTICLE 1700. The relations between capital and labor are not merely contractual. They are so impressed
with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject
to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
ARTICLE 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or
convenience of the public.
ARTICLE 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living for the laborer.
ARTICLE 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever,
shall be valid.
ARTICLE 1704. In collective bargaining, the labor union or members of the board or committee signing the
contract shall be liable for non-fulfillment thereof.
ARTICLE 1705. The laborer’s wages shall be paid in legal currency.
ARTICLE 1706. Withholding of the wages, except for a debt due, shall not be made by the employer.
ARTICLE 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done.
ARTICLE 1708. The laborer’s wages shall not be subject to execution or attachment, except for debts incurred
for food, shelter, clothing and medical attendance.
ARTICLE 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
ARTICLE 1710. Dismissal of laborers shall be subject to the supervision of the Government, under special
laws.
ARTICLE 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of
or injuries to their laborers, workmen, mechanics or other employees, even though the event may have been
purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the
course of the employment. The employer is also liable for compensation if the employee contracts any illness
or disease caused by such employment or as the result of the nature of the employment. If the mishap was due
to the employee’s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable
for compensation. When the employee’s lack of due care contributed to his death or injury, the compensation
shall be equitably reduced.
ARTICLE 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer
shall be solidarily liable for compensation. If a fellow worker’s intentional or malicious act is the only cause of
the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not
exercise due diligence in the selection or supervision of the plaintiff’s fellow worker.
See also Section 3 (Contract for A Piece of Work) of the same title and chapter, Art.1713 et seq.
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appearing under the chapter on “Work and Labor,” as part of Title VIII, which
refers to “Lease.” While the category has an undercurrent of political incorrectness
because of its objectifying tendency, it stands as a powerful symbol of what the
relationship is all about. This is understandable given the history of labor law
legislation in the Philippines, which, just like most other areas of law in the Islands,
cannot be historicized without reference to its status as a colony.
The relationship between labor and capital under the Spanish regime was a
matter of civil—and therefore, private—law.13 Just like any other item or good in the
market, labor was for sale or lease as a form of property held by the laborer which
can be bought by those who owned capital. This relationship was but a manifestation
of the classical liberal model of the market economy in the 19th century, where self-
interested players in the system were presumed capable enough to take care of
themselves because they were rational. Under the law on civil relations, the
relationship between labor and capital was a matter of contract and stipulations
between the parties were law between them. This meant, first, that the State was
under obligation to respect the parties’ agreement which is protected by the non-
impairments clause in the form of a constitutional norm14 or a statutory right; and
second, that in case of disagreement, the State was bound to enforce the contractual
stipulations agreed upon by the parties.
The most famous judicial statement embodying the philosophy behind the
relationship between labor and capital is the case of Lochner v. New York,15 where the
U.S. Supreme Court declared unconstitutional a state criminal law regulating such
relationship through the device of imposing maximum hours. According to the
Court, the right to purchase or to sell labor is part of the liberty protected by the
13 See Spanish Civil Code of 1889, Book IV (Obligations & Contracts), Title VI (Contracts of Lease), Chapter III
(Work & Labor). Section I, on Labor of Servants and Wage Earners provides—
Art. 1583. This class of service may be contracted for a definite or indefinite period, or for any specific work.
A hiring for life is void.
Art. 1584. A domestic servant hired for a definite period and to be employed in the personal service of his
master, or of the family of the latter, may leave the service or be discharged before the expiration of the term;
but if the master dismisses the servant without sufficient cause, he shall indemnify him by paying him fifteen
days’ wages in addition to the wages due.
Art. 1585. In addition to the provisions contained in the preceding articles with respect to masters and servants
those of the special laws and ordinances shall be observed.
Art. 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time or for certain work
cannot leave or be dismissed without just cause, before the fulfillment of the contract.
Art. 1587. The dismissal of the servants, mechanics, artisans, and other hired laborers to whom the preceding
articles refer gives the right to dispossess them of any implements or buildings of which they may have
possession by reason of their duties.
14 CONST., art. III, § 10: “No law impairing the obligation of contracts shall be passed.” See Home Building and Loan
Association v. Blaisdell, 290 U.S. 398 (1934); Ortigas & Co. Limited Partnership v. Feati Bank And Trust Co., 183 Phil.
176 (1979).
15 198 U.S. 45 (1905).
Due Process Clause,16 and thus within the realm of private choice and protected
from the intrusive force of public regulation.
Events in the United States following the First World War, specifically the so-
called Great Depression and the response to it—The New Deal—made policymakers
rethink their confidence in the operation of laissez faire’s invisible hand. The industrial
revolution created a lot of wealth that no society had ever produced before, but it
did little to alleviate the sweatshop system and the institutionalized slavery it produced.
This is why, when the market failed, people started looking up to the government
for relief. Prolonged recession meant that the market, which was before entitled to
full faith and credit, sometimes could not correct itself fast enough, if at all, to
dampen and reverse the staggering human cost of an economic downturn. Roosevelt’s
New Deal increased the size of government and introduced the administrative state
whose hallmark was the regulatory bureaucracy that was meant to police the target
concerns of the government—agriculture, securities, banking, infrastructure, and
labor.17
The notion of a liberal state was a creature of the deep mistrust of the kind of
institutions that ruled peoples’ lives prior to the rise of the ideal of public
accountability. The history of authoritarianism, monarchism, and theocracy in Europe
made it essential for those who believed in basic individual freedoms—life, liberty,
and property—to argue for statutes enumerating constraints against the use of public
power. This fixation with the dangers inherent in governments of unlimited powers
directed the focus of constitution-builders in structural limitations like the bill of
rights. Through a system of rights, the government itself became the protector of
liberty and the guarantor of fairness. Through the principle of universality of rights,
the liberty of those with substantial and minimal amounts of property became
concerns subject to the equal consideration of governments. Which is why, from
this perspective, Lochner simply operationalized the effects of a certain philosophical
tradition through the intervention of an activist court that sought to bar the
government from experimenting on solutions to the economic crisis.
This is also why, from a theoretical standpoint, the events of the 1930s were
revolutionary insofar as it meant the blurring of the lines between the public and the
private or a recasting of the relationship between the government and the people.
Apparently, the Americans found out that the very institution that they could not
trust was the very same institution they needed to trust if they wanted to respond
16 Id, at 57: The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words.
There is no reasonable ground for interfering with the liberty of person or the right of free contract, by
determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are
not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able
to assert their rights and care for themselves without the protecting arm of the state, interfering with their
independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely
labor law, with no reference whatever to the question of health, we think that a law like the one before us
involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in
the slightest degree affected by such an act.
17 See Robert S. McElvaine, THE GREAT DEPRESSION (1993); William E. Leuchtenburg, FRANKLIN D. ROOSEVELT & THE
NEW DEAL 1932-1940 (1963).
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from the shock of a depression. In the specific case of labor, the effect was the
creation of labor law as a specific area of legal discourse—with a separate jurisprudence
and a separate set of experts. This event meant that the relationship between labor
and capital would no longer be a matter of private law; instead, it would now assume
a hybrid character whose various aspects are subject to both private choice and
public policy.
A Dangerous Equivalence
The NUHWRAIN Decision. I introduce these remarks in the context of the
Supreme Court’s decision in NUWHRAIN v. Court of Appeals,18 which upheld the
respondent court’s decision terminating the services of union officers for violation
of the hotel’s grooming standards.19 The case grew out of a labor dispute between
NUWHRAIN and the management of Dusit Hotel. In 2000, the parties were
negotiating a collective bargaining agreement. When a deadlock ensured,
NUWHRAIN decided to file a notice of strike. Conciliation proceedings also failed,
thereafter followed by a strike vote by the union. In the meantime, and within the
mandatory 30-day cooling off period, some union members decided to go to work
“sport[ing] closely cropped hair or cleanly shaven heads.”20 The response of Dusit
Hotel was to prevent these workers from entering the premises on the ground that
they were in violation of the hotel’s grooming standards.21 In retaliation, the union
staged a picket outside the hotel premises.22 Dusit Hotel responded by preventing
other union members from entering the hotel, causing these workers to join the
picket.23 Suspension orders were then issued by the hotel in relation to the following
charges: violation of the duty to bargain in good faith; illegal picket; unfair labor
practice; violation of the hotel’s grooming standards; illegal strike; and commission
of illegal acts during an illegal strike.24 Eventually, the hotel terminated the services
of twenty-nine (29) union officers and sixty-one (61) members, suspended eighty-one
(81) employees for thirty days, forty-eight (48) employees for fifteen days, four (4)
employees for ten days, and three (3) employees for five days.25
The Supreme Court divided the issues into two, focusing on the question of
whether or not the following acts were legal: first, reporting for work with bald or
cropped hairstyle (18 January 2002); and second, the picketing of the hotel premises
18 570 SCRA 598, G.R. No. 163942 (11 November 2008). The full title of the case is National Union of Workers
in the Hotel Restaurant and Allied Industries (NUWHRAIN-APL-IUF) Dusit Hotel Nikko Chapter v. Court of
Appeals.
19 More precisely, the decision of the Court of Appeals was affirmed insofar as the union officers were concerned
and modified with respect to the union members, who were reinstated without backwages.
20 Supra note 19, at 604.
21 Id.
22 Ibid.
23 Ibid.
24 Ibid.
25 Id, at 605.
(26 January 2002). For purposes of analyzing the case, I shall focus on the first
issue, which, in any case, is determinative of how the entire litigation turns. The
Court listed down four justifications for upholding the dismissal of the employees—
First, the Union’s violation of the hotel’s grooming standards was clearly a
deliberate and concerted action to undermine the authority of and to embarrass the
Hotel and was, therefore, not a protected action.26
Second, the Union’s concerted action which disrupted the Hotel’s operations
clearly violated the CBA’s “No Strike, No Lockout stipulation.”27
Third, the Union officers and members’ concerted action to shave their heads
and crop their hair not only violated the hotel’s grooming standards but also violated
the union’s duty and responsibility to bargain in good faith.28
Fourth, the Union failed to observe the mandatory 30-day cooling off period
and the seven-day strike ban before it conducted the strike on 18 January 2002.29
The reality is that the “concerted action of the employees” brought about by
their “labor dispute” with the hotel is nowhere near how people would normally
understand “temporary stoppage of work.”30 To stop working temporarily means to
refuse to perform the job for which one is hired, traditionally understood as not
appearing in the workplace or, whether or not work is done in a space controlled by
the employer, by not creating the product or performing the service one is engaged
to do. “Stoppage” produces material consequences measurable in terms of the amount
of products churned out by the factory or the loss of revenue arising out of non-
performance of a service. In either case, the damage to the employer is evident
given that the employees, though engaged in an economic tiff with the employer, are
26 Id, at 613.
27 Id, at 614. ARTICLE XXII—NO STRIKE/WORK STOPPAGE AND LOCKOUT. SECTION 1. No Strikes.
The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal to
handle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/or
interferences with any of the normal operations of the HOTEL during the life of this Agreement.
28 Ibid.
29 Id, at 615.
30 See Lapanday Workers Union v. NLRC 248 SCRA 95 (1995); Ilaw at Buklod ng Manggagawa (IBM) v. NLRC 198
SCRA 586 (1991); Airline Pilots Association of the Philippines v. Court of Industrial Relations 167 Phil. 14 (1977);
Jacinto v. Court of Appeals, 281 SCRA 57 (1997); Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU, et al. v.
Sulpicio Lines, Inc., 426 SCRA 319 (2004).
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still under its employ and thus expected to produce or serve. But in NUWHRAIN,
the employees did report for work and perform the task they were supposed to do,
and there is nothing in the decision of the Court referring to any disturbance in the
business of Dusit Hotel as a consequence of the employees’ appearing for work
wearing hairstyles different from what they had before. Nor was there any insinuation
that they performed at sub-par levels such that the revenue of the hotel was affected,
even if slightly. We are therefore left with the question whether, in the absence of
any material and calculable damage to the hotel, as shown in the evidence, the act of
the unionists in expressing themselves through their hairstyle while performing the
functions for which they were hired can justifiably constitute a strike within the
meaning of the statute. This question takes on considerable value because, as shall
be discussed in the next section, the act of the employees could be analogized with
the concept of symbolic speech protected by the Free Speech Clause of the
Constitution especially in the light of the historical privileging of the rights of labor
in Philippine law.
For starters, the Court’s reference to the various categories of an illegal strike
does not really help and even undermines its conclusions. 31 Nowhere in the
authoritative enumeration cited by the Court could one find anything close to what
it wanted to justify. Teller’s enumeration was meant to generalize and was not directed
at specific forms of striking; nor was it meant to guide judges in categorizing whether
those concerted actions by employees that do not fall within the standard definition
are legal or not. And so the only way the Court could justify its decision was by
interpreting the action of the unionists and holding that it amounted to something
beyond the common meaning attributable to the term, that is, by stretching the
language and legislating a new standard of action. The most crucial paragraph of
the Court’s decision is found below—
31 The NUWHRAIN Court, citing Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission,
further citing Ludwig Teller, enumerates the so-called categories—
(1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental
functions; or
(2) [when it] violates a specific requirement of law, [such as Article 263 of the Labor Code on the requisites
of a valid strike]; or
(3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor
practice against non-union employees; or
(4) [when it] employees unlawful means in the pursuit of its objective, such as widespread terrorism of non-
strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or
(5) [when it] is declared in violation of an existing injunction [such as injunction, prohibition, or order issued
by the DOLE Secretary and the NLRC under Art.263 of the Labor Code; or
(6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.”
The operative word in the language of the Court is found in the last sentence:
considered; and the rhetorical strategy for arriving at this conclusion is that of necessity.
Looking at the facts of this case, one should immediately notice that the responsibility
for the actual strike—the picketing itself—rests on the answer to the question: who is
to blame for the escalation of this economic war? The hotel or the union? It goes
without saying that if the union members actually did stop working, the Court would
have simply applied the Teller formulation in a rather straightforward manner and
this incident would have ended up as just another labor matter. But precisely because
the unionists did not stop working until they were prevented from entering the
premises of the hotel (because of their violation of the grooming standards), the
Court had to preliminarily determine who was at fault for the eventual strike.
The union says the refusal to allow them to work triggered the picketing, while
the hotel asserts that the employees’ (some of them, at least) hairstyle was
unacceptable.
According to the Court, the effect of the union members sporting short
hairstyle was to force the hand of the hotel, compelling it to bar the entry into the
premises of employees who suited up for work. This strategy essentially foreclosed
any possibility of resolving the issue of violation of the grooming standards separately
from the problem of the picketing that ensued. Moreover, it allowed the Court to
transfer to the employees the responsibility of the hotel for having prevented the
workers from entering the premises. Lack of choice on the part of the hotel
meant that the employees themselves sealed their faith by cutting short their
hair.
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an illegal strike suffer from liabilities defined by the Labor Code itself.33 Under the
law, employees are allowed to impair the operations of the employer in order to
equalize the relationship between them. This is why the union is held to a higher
standard of accountability for the illegal use of such a powerful weapon. This assumes,
however, that the employees held liable did engage in a strike as defined by the
statute whose defining characteristic is a temporary stoppage of work. Any other
action of the employees that burdens or damages the employer is subject to rules
other than the law on strikes.
33 Id, at 616-617: “What then are the consequent liabilities of the Union officers and members for their participation
in the illegal strike? Regarding the Union officers and members’ liabilities for their participation in the illegal
picket and strike, Art. 264 (a), paragraph 3 of the Labor Code provides that ‘[a]ny union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly participates in the commission
of illegal acts during a strike may be declared to have lost his employment status. . . .’ The law makes a distinction
between union officers and mere union members. Union officers may be validly terminated from employment
for their participation in an illegal strike, while union members have to participate in and commit illegal acts for
them to lose their employment status. Thus, it is necessary for the company to adduce proof of the participation
of the striking employees in the commission of illegal acts during the strikes.” (internal citation omitted). See
also: Labor Code of the Philippines, Book V, Title 1, Chapter IV, Art. 272: Penalties. – (a) Any person violating
any of the provisions of Article 264 of this Code shall be punished by a fine of not less than one thousand pesos
(Php1,000.00) nor more than ten thousand pesos (Php10,000.00) and/or imprisonment for not less than three
months nor more than three (3) years, or both such fine and imprisonment, at the discretion of the court.
Prosecution for the same act under the Revised Penal Code, and vice versa. (b) Upon the recommendation of
the Minister of Labor and Employment and the Minister of National Defense, foreigners who violate the
provisions of this Title shall be subject to the immediate and summary deportation by the Commission on
immigration and Deportation and shall be permanently barred from re-entering the country without the special
permission of the President of the Philippines.
The hotel certainly has some right over the way its employees appear especially
given the enterprise in which it is engaged. But this is only the beginning of the
analysis, not the end. The hotel needs to establish several things: first, evidence that
customers noticed something was in fact “amiss.” That the Court itself said that
wearing short hair does not per se evoke “unpleasant feelings” means that the hotel
must supplement its claim with evidence of negative reactions on the part of customers.
This is even more relevant considering that hotels, by the nature of their business,
cater to transients. Permanent residents of a locality might be more sensitive to
radical changes in the way their neighbors look, but those who stay in hotels generally
have no expectation of consistency in the looks of the employees that assist them.
Second, the hotel should establish that the reaction of the customer was in fact negative.
There are many ways of reacting to the novelty of seeing a good number of short-
haired hotel employees—it might be that customers would think that this was pursuant
to a new hotel policy; it might be curiosity, which may or may not lead to inquiry; in
case they inquire, it might be sympathy or lack of sympathy; or they might show a
stunning lack of interest. In the absence of a negative reaction, we cannot even
begin to speak about whether the hotel suffered as a consequence of the concerted
action. Third, the hotel must be able to establish damage, whether reputational or
otherwise. Because the equivalence rests on the assumption that employees who
show up for work to sabotage the employer are no different from those who stop
working, it is indispensable that the employer is actually able to establish the damage
and its extent. In the absence of material damage, the equivalence fails and the
Court cannot consider the employees to have engaged in a strike. But because the
Court actually does so in NUWHRAIN, we now have this dangerous equivalence as a
standing precedent.
So far, what I have done is focus on the doctrinal implications of this new
understanding, limiting the analysis to its effect on existing jurisprudence and with
no reference to an external or policy critique. This is intentional, as my purpose is
to show that the decision is faulty not only (ultimately) from an external perspective
34 Id, at 613.
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but also from an internal one. The use of doctrinal tools to study the case is meant
to establish that, by the very terms of the current jurisprudence, the Court has
veered away from settled understanding and quite dangerously so given its loose
treatment of the equivalence between striking and working with the intention of
publicizing one’s disagreements with an employer. In the next section, I try to push
further this analysis by introducing a constitutional angle, in the form of an analogy,
to this case. In sum, the idea is to look at the concerted action of the employees as
a form of expression that is subject to some protection by the legislature, if not the
constitution. This completes the picture I presented in the introduction which dealt
with the public nature of labor law, and sets up the conclusion that workers have an
analogous right to engage in certain types of protected speech, with the correlative
insight that any form of regulation to sanction such expression should be subjected
to some higher standard of scrutiny.
Labored Speech
I introduced this article with a discussion of the old critique about the wobbly
dichotomy between the categories public and private in general, and in particular in
the case of labor legislation. The purpose of this introduction was to establish the
possibility of borrowing public law-type of analysis in private law, in the hope of
expanding the parochialism of purely doctrinal critique and establishing the link
between policy and doctrine. At the same time, the technique of analysis that follows
is itself doctrinal, only this time focusing on constitutional law as applied to labor
relations. This itself should allow for a wider lens with which to view the facts of
NUWHRAIN, as constitutional law is more openly embracive of resorts to policy
than labor law. Thus, in a limited sense, the section that follows is an external
critique.
Speaking but not speaking. Free speech is traditionally understood as the right to
speak freely with the use of the word, whether through speech or in writing.35 In
addition, as part of the Bill of Rights, it is considered an important item in that
basket of legal shields and swords the citizen can use against the State. It is thus
generally held that the Bill of Rights mediates the relationship between State and
citizen, but not between citizen and citizen.36
The understanding that speech is about speaking and writing turns out to be
very difficult to operationalize in cases that clearly involve expression, though not
with the use of traditional implements such as the voice box or paper. For while it is
true that the stereotypical manifestation of free speech is and has been about
publishing one’s thoughts in speech or writing, it does not exhaust the possibilities
for the creative use of the right. It is in these cases where the tug-of-war between the
State and the citizen becomes more interesting. The reason for this is that whenever
35 Thomas Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (1970).
36 See People v. Marti, 193 SCRA 57 (1991).
the citizen engages in a traditional form of expression the State is held to a very high
standard of justification for its attempts to regulate the content of that expression.
Be it the incitement37 or the clear and present danger38 test, the State will find its
case very difficult to win, given that content-based regulations raise a lot of judicial
suspicion.39 Most importantly, because traditional forms of expression usually do
not use any medium within the control of government, regulators are left with nothing
to regulate other than the content of the expression itself and thus without any
plausible justification to intrude.
However, the case is different when the speaker decides to use a regulated
medium such as the airwaves40 and certain public places41 or when the expression is
tied to an act that may itself be subject to regulation.42 A species of the latter set of
cases involve so-called symbolic speech or expression that is in the form of an act
that does not make use of the voice box or writing device. In the United States,
jurisprudence has developed with respect to these forms of expression, the effect of
which has been the creation of a test for content-neutral forms of regulating speech
with action components. Because these situations sometimes involve matters in
which the government has some right to regulate, the test focuses not on the content
of the act (which is still considered an expression) but on the legitimacy of the
government’s regulation of the non-speech component of the act.
The classic cases involving symbolic speech are those relating to the expression
of anti-war advocates: United States v. O’brien43 and Texas v. Johnson.44 The O’brien
case, after which the so-called O’brien test was named, involved resistance against
the draft in the form of the destruction of the draft card. In some ways similar to
Aguinaldo’s act of tearing of the cedula, the destruction of the draft card was meant
to dramatize the quasi-slave status of a draftee. It so happened that in the case of
Mr. O’brien, the congress amended the draft statute in order to penalize precisely
such an act of destruction. Convicted for tearing his draft card, O’brien argued that
his act was speech protected by the First Amendment which, in turn, covers
“communication of ideas by conduct.”45 The U.S. Supreme Court, while recognizing
37 Brandenburg v. Ohio, 395 U.S. 444 (1969), at 447: “The constitutional guarantees of free speech and free press do
not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.”
38 Schneck v. United States, 249 U.S. 47 (1919); Dennis v. United States, 341 U.S. 494 (1951).
39 See Boos v. Barry, 485 U.S. 312, 334 (1988); Burson v. Freeman, 504 U.S. 191 (1992); Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974).
40 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Red Lion Broadcasting Co. v.
Federal Communications Commission, 395 U.S. 367 (1969).
41 See Bayan v. Ermita, supra note 2; Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Clark v.
Community for Creative Non-Violence, 468 U.S. 288 (1984).
42 See Virginia v. Black et al., 538 U.S. 343 (2003); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. Larue,
409 U.S. 109 (1972); Schneider v. State, 308 U.S. 147 (1939).
43 391 U.S. 367 (1968).
44 491 U.S. 398 (1989).
45 O’brien, supra at 376.
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the speech component of the act, also held that the government had legitimate
justification for criminalizing the intentional destruction of the card. As a form of
compromise, it formulated what has become the canonical standard for scrutinizing
content-neutral regulation. In essence, it is a level of scrutiny lower than strict scrutiny
but higher than mere rational basis standard. The O’brien test holds that a
government regulation is sufficiently justified—
The test is meant to strike a balance between the intertwined interests of the
government over a particular object or medium, and the free speech rights of a
speaker. In operation, the O’brien test is a way to determine (1) whether or not the
regulation is directed at speech, and (2) if not so directed at speech, whether the
regulation is justifiable even if it incidentally burdens speech. The consequence is
that, if the regulation mainly targets the expressive content itself, the O’brien test is
inapplicable even if the government may have some justifiable reason for passing
the statute involved. This is exactly the case in Texas v. Johnson which involved the
constitutionality of the petitioner state’s proscription against the “desecration of a
venerated object.”47 In this case, Gregory Lee Johnson was prosecuted for desecrating
the American flag, which he burned on the occasion of the Republican National
Convention in 1984. He challenged the constitutionality of the statute on the ground
that he was engaged in symbolic speech. The U.S. Supreme Court upheld his claim
and held that the statute was content-based,48 which meant that the preservation of
the flag as a symbol of nationhood and national unity, while commendable, could
not be enforced through the criminal justice system without infringing free speech
rights. It therefore subjected the State’s asserted interest in preserving the special
symbolic character of the flag to the most exacting scrutiny.49
Symbolic speech in labor relations. While private corporations such as Dusit Hotel
are generally entitled to greater protection from government intrusion than are
46 Id, at 377.
47 Johnson, supra at 400.
48 According to the Court, “Johnson was prosecuted because he knew that his politically charged expression
would cause ‘serious offense.’ If he had burned the flag as a means of disposing of it because it was dirty or torn,
he would not have been convicted of flag desecration under this Texas law; federal law designates burning as the
preferred means of disposing of a flag ‘when it is in such condition that it is no longer a fitting emblem for
display,’ …and Texas had no quarrel with this means of disposal. The Texas law is thus not aimed at protecting
the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments
that would cause serious offense to others.” Id, at 411.
49 Id, at 412.
public corporations, there are several reasons that justify applying, by analogy, the
concept of symbolic speech and the test that comes with it, in the field of labor
relations—
Third, the close relationship between striking and speaking. The legal recognition
of the right to strike is more than just a grant of the power to stop working and
impair the employer’s business. It is also about the power to publicize certain aspects
of the relationship between the employees and the outfit that they serve. When
employees strike, they do not simply stop working. They usually engage in a public
relations war with the employer through picketing, leafleting, and other means of
communicating their economic concerns. In a way, this is equivalent to the right of
the citizen to petition the government for redress of grievance.50
50 CONST. art. III, §4; See De la Cruz v. Court of Appeals, 265 SCRA 299 (1996); Bangalisan v. Court of Appeals, 276
SCRA 619 (1997) ; Luzviminda De La Cruz v. Court of Appeals, 305 SCRA 303 (1999); Alipat v. Court of Appeals,
308 SCRA 781 (1999); Everdina Acosta v. Court of Appeals, 334 SCRA 486 (2000).
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A strike is not narrowly confined to the affairs between the employer and the
employees. Picketing and leafleting are in fact public demonstrations of the economic
environment in a particular business. Striking employees do not only appeal to the
owners of the firm; they are, in a real sense, also presenting their case to the public.
In some ways, this relationship mimics that of the state and its citizens. When
employees strike, they are in effect demanding a reconfiguration of their economic
relations with the employer. In other words, they are engaging the employer in a
battle for the terms of sharing of the wealth of the firm. Viewed in this light, it
becomes easier to acknowledge the parallelism between the situation of striking
employees and citizens engaging in expressive activities and petitioning the
government for redress of grievances.
Does Dusit Hotel have the power to sanction union members for sporting
cropped hair? Following the amended O’brien test—
(a) Does Dusit Hotel have the power to enact regulations controlling the way
their employees look? Yes. It is generally conceded that the employer, especially
one in the service sector, has the regulatory capacity to control the way its employees
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Flor in T. Hilbay
look through devices such as a dress code, uniform, etc. and this includes having
some control over the way parts of the body are presented, as in this case, through
the Hotel’s grooming standards.
(b) Does Dusit Hotel’s grooming standards further its corporate interest? Yes.
Dusit Hotel’s reputation rests heavily on two things—(1) the quality of the hotel’s
building and facilities and (2) the kind of service offered by the management through
its staff. The ability of hotels to provide service is immediately judged on the basis
of the way the staff relates to its customers, and part of this performance is not only
limited to carrying bags, saying customary niceties, giving directions, providing food
and other hotel comforts. This performance also includes the visual presentation of
the staff to the clients to create a distinctive and pleasing impact. The use of grooming
standards to control this visual presentation is legitimately part of the hotel’s attempt
to further its corporate interests.
(c) Are the grooming standards, as applied to the collective action of the
unionists, unrelated to their expression? No. In this case “free expression” relates
to the right of the employees to legitimately air their grievances in a manner that
does not amount to stoppage of work and does not result in damage to the employer.
The fact that they are employees does not, by itself, impair their right to speak.
Consider, for example, the action of an employee, or the union itself, in setting up a
blog to report on the failed negotiation with Dusit Hotel. So long as no defamatory
materials are involved and she is not so contractually bound, a strong argument is
available for the position that the employee or the union is within her or its right in
reporting and expressing sentiments about the failed negotiation.
Pursuant to this analysis, Dusit Hotel must establish the following evidence:
(a) that the employees engaged in collective action; (b) that the intention was to
impair the reputation of the hotel; (c) that such intention was communicated to the
guests of the hotel; (d) that, as a consequence of the communication, the guests
adversely reacted; and (e) the hotel suffered materially from this adverse reaction in
terms of impaired goodwill and reputation or reduced sales.
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Compare this heightened standard with the decision of the Court and one
immediately sees how casually the Court treated the rights of the employees to air
their grievances in nonviolent form. Notice that in the decision, the Court three
crucial, ungrounded assumptions: (a) that the intention of the members of the union
was to impair the business of the hotel by sporting short haircut; (b) that such intention
was so communicated to the clients of the hotel; and (c) that damage to the hotel’s
reputation or finances ensued as a consequence of the collective action.
Applying the re-modeled O’brien test to the situation at bar, we can see how
potent the test is in terms of its ability to articulate the details of similar cases in
relation to the larger policy questions involved. The great advantage of the test, as
one can readily see, is that it forces the Court to weigh the competing claims of the
parties not at a speculative level but at a factual level. Using this demand for a
detailed articulation, one could make the two-pronged argument that because the
sanction imposed by Dusit Hotel was directed solely at the expressive content of the
employees’ cropped hair and that the interest sought to be protected by the hotel—
prevention of damage to its reputation and goodwill—was not fully shown to have
been placed in any concrete danger of impairment, the termination of the services of
the employees was unwarranted.
Conclusion
The policy question that NUWHRAIN presents is this: how should the courts
draw the line between protected and unprotected speech in the workplace in the
context of a contentious collective bargaining negotiation? This is a very important
question of policy given the competing recognition of the importance of capital and
labor in the Constitution and the historical tension between them in Philippine society.
One the one hand, employers have the right to protect their rights to property
which includes the power to control, to a certain extent, both the expression and the
appearance of those under their employ; on the other, the contract of employment
does not transform employees into unthinking subjects with no capacity to express
themselves especially in matters that relate to their welfare. Demarcating this line
serves to notify both employers and employees of the rules of the game of economic
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The Legal Regime Governing the Export of Filipino Workers
I. Introduction
United Nations Secretary-General Ban Ki-Moon encapsulates not only the saga
but also the significant contributions of Migrant Workers in the following manner:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided health care,
equipped schools and planted the seeds of business. They have woven together the
world by transmitting ideas and knowledge from country to country. They have
provided the dynamic human link between cultures, societies and economies. Yet, only
recently have we begun to understand not only how much international migration
impacts development, but how smart public policies can magnify this effect.
The Philippines has over eight (8) million overseas Filipinos in over 175
countries and territories worldwide, comprising about ten percent (10%) of the
* A paper presented at the Regional Seminar on the Protection of Foreign Workers in Asia Taiwan Labor Law
Association November 21-22, 2009 Taipei, Taiwan.
** Associate Dean, University of the Philippines College of Law and Supervisor, University of the Philippines Law
Center.
1 Adam Smith, Wealth of Nations, Book II Chapter III.
2 Henry Hazlitt, The Conquest of Poverty, New York Foundation for Economic Education 1996 (1973) p. 159,
quoting History of England, Thomas Babington Macualay.
3 Ibid, p. 160.
Philippine population and 20 percent (20%) of the labor force.4 The latest census
(July 2009) on Philippine population indicates a total of 97,976,603 Filipinos and to
date, and the deployment average is 3,377 workers a day.
The biggest issue which has bedeviled Overseas Filipino Workers (OFWs, for
brevity) is their vulnerability to oppression and exploitation and all kinds of abuses.
This raises the question of sufficiency of the laws and programs that the Philippines
has in addressing the same. Moreover, the effects of migration are not limited to the
OFWs themselves but extend to the social costs on the families that they leave
behind, and to the country as a whole considering its reliance on remittances from
OFWs.
This paper will give a general background of the labor sector in the Philippines,
before proceeding to the legal framework governing the deployment of OFWs and
then, the effects of the OFW phenomenon.
The official Labor Force Survey reveals that the number of unemployed persons
as of July 2009 was estimated at 2.9 million. This translates to an unemployment
rate of 7.6%. The survey indicates that “[o]f the estimated 59.5 million population 15
years old and over in July 2009, about 38.4 million persons were reported to be in
the labor force. This translates to a labor force participation rate (LFPR) of 64.6
percent […] Of the estimated 35.5 million employed persons in July 2009, more than
half (51.5%) worked in the services sector with those employed in wholesale and
retail trade, repair of motor vehicles, motorcycles and personal and household goods
sub-sector comprising the largest sub-sector (18.9% of the total employed). Workers
in the agriculture sector accounted for 33.6 percent of the total employed, with
workers in agriculture, hunting and forestry making up the largest sub-sector (29.5%
of the total employed). Only 14.8 percent of the total employed were in the industry
sector. Among the various occupation groups, laborers and unskilled workers
comprised the largest proportion (33.0%) of the total employed population. Farmers,
forestry workers and fishermen were the second largest group, accounting for 16.2
percent of the total employed population.”5
The same survey reports that employed persons can be categorized into: wage
and salary workers, own account workers and unpaid family workers. Wage and salary workers,
which comprised 55% of the employed persons work for private households, private
4 L. Cadapan, “Fast Facts on Filipino Labor Migration,” Kanlungan Center Foundation, Inc. (Quezon City: 1999)
7-9
5 Census Press Release, taken from http://www.census.gov.ph/data/pressrelease/2009/1f0903tx.html, accessed
on November 12, 2009
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However, data from the private sector paints a slightly different picture.
According to the Social Weather Station, a highly reputable private non-stock,
nonprofit social research institution, “[u]nemployment reached a record high of 34.2
percent in February[…] This means an estimated 14 million were unemployed, a
considerable rise from the previous quarter’s 27.9 percent or estimated 11 million
adults, according to the SWS’s First Quarter 2009 survey.”10
In the article aptly entitled “Why Filipinos Prefer to Work Abroad”11 the writer
opines that “[t]he unstable economic and political situation in the Philippines is one
of the major causes why most educated and highly skilled Filipinos prefer to work
6 Ibid.
7 Ibid.
8 Ibid.
9 Ibid.
10 SWS survey: Unemployment rate now at 34.2%, Philippine Daily Inquirer, First Posted 05:31:00 05/13/2009,
taken from http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090513-204696/SWS-survey-
Unemployment-rate-now-at-342, accessed on November 12, 2009.
11 Why Filipinos Prefer to Work Abroad?, http://www.ofw-connect.com/myarticle/why_work_overseas.htm, accessed
on November 12, 2009.
abroad. Filipino workers could not see any hope from their leaders to achieve
prosperity for the country.” Low salary rates is also a compelling reason. The writer
adds that “[t]o get better education from reputable schools in the Philippines is not
cheap for an ordinary Filipino but by the time a worker gets a job in the Philippines,
he does not get paid enough to equal his investment on education. Due to this, most
Filipino skilled workers get jobs abroad where salary [is] commensurate [to] education,
skills, and experience. Sometimes, an OFW can be paid more if he takes a blue-
collar job even if he is a degree holder. That is why a lot of degree-holder Filipinos
work abroad as maids, sales ladies, construction workers and laborers. Most Filipinos
would work on any job as long as it is decent and high paying.”
The writer further avers that poor benefits offered in the Philippines is another
reason for OFWs’ preference to work abroad. Thus, “[a] foreign-based company can
give benefits to employees such as housing, food allowance, medical or health care,
dental care, paid leave, or even educational benefits for children but in [the]
Philippines, it is very rare to be employed and get most of these benefits.”
According to the same source, the top ten skills for new hires in 2008 are as
follows: 1. Household Service Workers (14.8%); 2. Waiters, Bartenders and Related
12 De Guzman, O. Overseas Filipino Workers, Labor Circulation in Southeast Asia, and the (Mis)management of
Overseas Migration Programs, taken from http://kyotoreview.cseas.kyoto-u.ac.jp/issue/issue3/article_281.html,
accessed on November 12, 2009.
13 Overseas Employment Statistics, from http://www.poea.gov.ph/html/statistics.html, accessed on November 12,
2009.
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Article 18 of the Labor Code bans direct hiring by providing that: “No employer
may hire a Filipino worker for overseas employment except through the Boards and
entities authorized by the Secretary of Labor.” This means that the hiring of OFWs
must be coursed through the Philippines Overseas Employment Administration
(POEA) or through (a) private employment agencies or (b) private recruitment entities
which, pursuant to national development objectives, may be allowed under the law
to participate in the recruitment and placement of workers. Such participation will
be subject to guidelines as may issued by the Secretary of Labor. (Labor Code,
Articles 12[f], 13 [c] [d] [e] [f], 14 [a] and 25)
The primary statute governing labor standards and labor relations in the
Philippines is the Labor Code which is a consolidation of labor and social laws. The
Code is meant to afford protection to labor, to promote full employment, to ensure
equal work opportunities regardless of sex, race or creed and to regulate the relations
between workers and employers. It is also intended to promote human resources
development and to insure industrial peace based on social justice. Likewise, the
Philippines has a “Migrant Workers and Overseas Filipinos Act of 1995” (RA 8042),
which institutes the policies of overseas employment and establishes a higher standard
of protection and promotion of the welfare of not only the migrant workers
themselves but likewise, their families and for that manner, other overseas Filipinos
who are in distress.
Most significant in the Labor Code and in the Migrant Workers Act are the
provisions which penalize illegal recruitment.
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Also of note in the Migrant Workers Act is its provision on deployment which
states that: “The State shall deploy overseas Filipino workers only in countries where
the rights of Filipino migrant workers are protected. The government recognizes
any of the following as a guarantee on the part of the receiving country for the
protection and the rights of overseas Filipino workers: (a) It has existing labor and
social laws protecting the rights of migrant workers; (b) It is a signatory to multilateral
conventions, declarations or resolutions relating to the protection of migrant workers;
(c) It has concluded a bilateral agreement or arrangement with the government
protecting the rights of overseas Filipino workers; and (d) It is taking positive,
concrete measures to protect the rights of migrant workers (Section 4).”
Considering the inherent inequality between labor and capital, the framers of
the fundamental law of the Philippines enshrined therein provisions which are aimed
at leveling the playing field between them. Thus, the Constitution mandates the
State to afford full protection to labor, whether based locally or overseas, organized
or unorganized. The Constitution likewise mandates the promotion of full
employment and equality of employment opportunities for all.
In the fairly recent en banc decision of the Supreme Court of the Philippines, it
was held:
Our present Constitution has gone further in guaranteeing vital social and economic
rights to marginalized groups of society, including labor. Under the policy of social
justice, the law bends over backward to accommodate the interests of the working
class on the humane justification that those with less privilege in life should have
more in law. And the obligation to afford protection to labor is incumbent not only
on the legislative and executive branches but also on the judiciary to translate this
pledge into a living reality. Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in its rational
and objectively secular conception may at least be approximated. (Antonio M. Serrano
v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., GR No. 167614;
March 24, 2009)
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The Philippines has signed and ratified the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families.
As such, the said convention forms part of the law of the land.16 As the title of the
convention suggests, protection is afforded not only to the migrant workers
themselves but to their families as well. It recognizes the principles and standards
embodied in international instruments concerning human rights in general and
migrant workers in particular. Included in the convention are employment rights,
the right to freely choose employment, trade union rights, social security rights, the
right to health, the right to housing, the right to family unity, the right to education,
cultural rights, political rights, and residence rights.
16 Section 2 of Article II of the Philippine Constitution states that “The Philippines […] adopts the generally
accepted principles of international law as part of the law of the land.”
17 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en, accessed on
November 15, 2009.
18 Agency Profile from http://www.dole.gov.ph/profile/, accessed on November 12, 2009.
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well-being of OFWs; provide social and welfare services to OFWs, including insurance,
social work assistance, legal assistance, cultural services, and remittance services;
ensure the efficiency of collection and the viability and sustainability of the fund
through sound and judicious investment and fund management policies; undertake
studies and researches for the enhancement of their social, economic and cultural
well-being; and develop, support and finance specific projects for the welfare of
OFWs. 19
E. NGOs
The NGOs protect rights of not only OFWs but also, of Filipino immigrants
and their families as well as promote their welfare consistent with the Constitutional
mandate. These help improve the politico-socio-economic conditions of OFWs
through policy advocacy, information dissemination, networking, capacity building
and direct assistance. Examples of these NGOs are the Center for Migrant Advocacy
– Philippines (CMA) and the Katipunan ng Migranting Pilipino, Inc. (Japan). CMA is
engaged in the gathering of information, conduct of studies on overseas migration
and related concerns and information dissemination, among others.
Kapisanan has been providing direct assistance to OFWs and their families
including legal assistance to those faced with complaints which may lead to the
cancellation of their working visas and eventually, their deportation from the country
of employment. It has also been documenting the cases of Japan-based OFWs who
received assistance from Kapisanan.
In an article21 posted on the website of the Office of the President, it was said
that former President Gloria Macapagal-Arroyo’s international engagements have
brought about several hiring agreements with foreign countries. It stated that among
the countries that the President visited and which committed to hire more Filipino
professionals and skilled workers are Qatar, Saudi Arabia, Canada, Australia, and
Japan. The DOLE reported that the Philippine Government entered into a bilateral
agreement with South Korea on the employment of Filipino overseas workers and
that the Memorandum of Understanding signed between the DOLE and its Korean
counterpart in May 2009 provided for the hiring of 5,000 Filipino workers in the
Korean manufacturing industry and other sectors within the next ten months.
The Philippines likewise entered into MOUs with Alberta, Manitoba, British
Columbia and Saskatchewan. The common purpose of these MOUs is to clarify and
articulate the participants’ intentions to promote and strengthen areas of cooperation
in the fields of labor, employment and human resource deployment and development.
However, these MOUs are not legally binding on the parties. This must be so
considering that Section 21 of Art. VI of the Constitution provides that “(N)o treaty
or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.”
21 Demand for Filipino workers abroad expected to hold up, 26 July 2009, from http://www.op.gov.ph/
index.php?option=com_content&task=view&id=25740&Itemid=, accessed on November 12, 2009.
22 David. R., Overseas employment and its effects (in the Philippine Daily Inquirer, 07/18/2009), from http://
opinion.inquirer.net/inquireropinion/columns/view/20090718-215995/Overseas-employment-and-its-effects,
accessed on November 12, 2009.
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led to the entrenchment of an economic strategy based on labor export that tends to
preclude planning for the long-term development of the national economy.”
As for the OFWs themselves, problems arise in the area of their protection
and welfare abroad. One of the most prevalent issues is imprisonment. It has been
reported in Inquirer.net25 that “[s]ome 3,000 Filipinos are in jail in different countries
around the world, according to the Department of Foreign Affairs.” According to
the report, about 70% are detained on immigration-related charges, while the rest
are detained for common crimes, including theft and drug trafficking. Another concern
are the cases OFWs who are abused or maltreated by their employers, usually women
domestic helpers who run away from their employers.
This is a manifestation of the lack of force and effect of the Philippine laws for
the protection of OFWs. As mentioned in a previous section, the Philippines is a
23 Tan, K.J.T., Leaving OFW children behind: Economic benefits vs social costs, from http://www.gmanews.tv/
story/134430/leaving-ofw-children-behind-economic-benefits-vs-social-costs, accessed on November 12, 2009.
24 See, D.A., Cases of abandonment of OFW families rising, October 11, 2007, from http://mb.com.ph/node/
38315, accessed on November 12, 2009.
25 Esplanada, J.E., 3000 Filipinos in jail overseas, from http://globalnation.inquirer.net/news/breakingnews/view/
20091110-235374/3000-Filipinos-in-jail-overseasDFA, accessed on November 12, 2009.
signatory, and has ratified, the ILO Convention on Migrant Workers. However, the
lack of ratification on the part of receiving countries renders such convention
seemingly useless. Further reform must be made for the protection of migrant workers,
not only on the national level, but also in the international sphere. Without such
international cooperation, the Philippines will continuously find itself helpless in
protecting its workers abroad since it will always be limited by its need to appease
the receiving nations, as it is heavily reliant on remittances from these countries.
V. Conclusion
The problems facing OFWs are both in the national and international levels.
They affect the OFWs themselves, the families they leave behind, and the country
itself. On the part of the OFWs, the lack of external cooperation leads to the
continuous abuses and violation of rights of Filipino workers abroad, despite the
best efforts of the Philippine government to protect its workers. On the part of the
families left behind, the social cost of migration and separation are undeniable, as
can be seen in the fragmentation of families of OFWs. On the national level, the
problem of heavy reliance on foreign remittances prevails. At the end of the day, the
economic standing of the Philippines relative to other nations is both the reason and
the end of the OFW phenomenon.
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1. Introduction
* Director, Mandatory Continuing Legal Education Office, Supreme Court of the Philippines; Professor II,
Philippine Judicial Academy and Professorial Lecturer, University of the Philippines, College of Law.
1 Greenpeace, The Philippines: A Climate Hotspot; Climate Impacts, 1 (April 2007).
2 Ibid., p. 6.
3 Bryan Walsh, “The New Age of Extinction,” Time Magazine, April 13, 2009, p.32.
4 IPCC Fourth Assessment Report: Climate Change, 2007. Available at http://www.ipecich/ipccreports/index.htm.
These greenhouse gases such as carbon dioxide (CO2), methane (CH2), nitrous
oxide (N 2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur
hexafluoride (Sf6) produced by human activities cause the thinning of the ozone
layer which protects us from UV and the cosmic rays of outer space.5 For example,
CFCs which are used as refrigerants and aerosol agents can release chlorine that
further reacts with oxygen some thousands times over. Particulates affect visibility
and health. Nitrogen when combined with water, ends up as acid rain.6 Methane is
formed when organic waste is decomposed in the absence of oxygen, as in landfills
and dumpsites.
The alarm was raised because of the significant thinning of the ozone layer
over Antarctica. These CFCs and other gases which were eventually carried by the
wind currents into the ozone layer reacted with the ozone molecules and broke
down the gaseous umbrella at a rate faster they could be replenished, thus creating
holes in Antarctica, Europe and the Arctic, thus leading to global warming and global
climate change.7
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The 1987 Constitution views the environment and natural resources from
three perspectives: as a human rights concern, as a social justice concern, and as a
resource allocation concern. The human rights concern is found in Article III,
Section 1 which states that “No person shall be deprived of life, liberty, or property
without due process of law…” and in Article II, Section 16 which provides that “The
State shall protect and advance the right of the people to a balanced and healthful
ecology in accordance with the rhythm and harmony of nature” as well as in Article
II, Section 15 which states that “The State shall protect and promote the right to
health of the people and instill health consciousness among them.”10
The U.N. Framework Convention on Climate Change has been the center-
piece of global efforts to combat global warming and the international community’s
most essential tools in the struggle to promote sustainable development. This treaty
was finalized in June 1992 as one of the instruments at the U.N. Conference on
Environment and Development (UNCED) held at Rio de Janeiro. It was signed by
154 States and the European Community and entered into force on 21 March 1994.
It reflected a compromise between those states which were seeking specific targets
and timetables for emissions reductions, and those which wanted a skeleton
Convention to serve as basis for future protocols. It established the principle of
common but differentiated responsibility in international environmental law which
requires international response measures aimed at addressing environmental
problems but imposing different commitments from States and their respective
capabilities. It also established (a) commitments to stabilize greenhouse concentrations
in the atmosphere at a safe level over the long term; (b) a financial mechanism and a
commitment by certain developed countries to provide financial resources for meeting
certain incremental costs and adaptation measures; (c) two subsidiary bodies to the
Conference of the Parties; (d) a number of important guiding principles; and (e)
potentially innovative implementation and dispute settlement mechanisms.
The Philippines has signed many global conventions which addressed the
environment such as the protection of the ozone layer,13 trade in hazardous wastes,14
biological diversity,15 climate change,16 among others. Section 2, Article II of the
Philippine Constitution provides that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. By the principle of
incorporation, it is but proper that the Philippines implement the provisions of the
environment treaties it has ratified. Therefore, an enumeration of the recent
implementing statutes is in order.
To address the global climate change and other international conventions which
the Philippines has ratified and pursuant to the constitutional provisions, the following
statutes were enacted.
13 See note 5.
14 Convention on the Control of Transboundary Movements of Hazardous Wastes, Basel, March 22, 1989.
Philippines ratified it on October 21, 1993.
15 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992. Philippines ratified it on October 8, 1993.
16 U.N. Framework Convention on Climate Change, New York, May 9, 1992. Philippines ratified it on August 2,
1994.
17 Rep. Act No. 8749 (1999), sec. 3, 95 O.G. 6831 (Sept. 27, 1999).
18 Id., sec. 4.
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The law lays down pollution standards for different sources: stationary, motor
vehicles, smoking and other mobile sources.19
Note that in Section 5 of Republic Act No. 9211, otherwise known as the Tobacco
Regulation Act of 2003, smoking is banned in public places such as playschools,
educational institutions, youth hostels, recreational facilities; elevators and stairwells;
buildings and premises of public and private hospitals, clinics, nursing homes and
laboratories; locations where fire hazards are present, i.e., gas station storage areas
for flammable or combustible materials; public conveyances and public facilities,
i.e., airport and ship terminals, train and bus stations, restaurants and conference
halls except for separate smoking areas; and food preparation areas.
Republic Act No. 8749 also regulates the use of fuels, additives, substances,
and pollutants, the most significant is the phasing out of leaded gasoline.20 It also
mandates the phasing out of ozone-depleting substances, reduction of greenhouse
gas emissions, the reduction and elimination of persistent organic pollutants (POPs)
such as dioxins furans,21 and the regulation of the use of radioactive emissions.22
Any affected person may file an administrative action with the DENR which,
upon verified complaint or motu proprio institute administrative proceedings against
any person violating standards or limitations provided by this law or any order, rule
or regulation issued by the Department.23 The law also establishes the filing of
citizen suits against (a) any person who violates or fails to comply with the provisions
of this Act or its implementing rules and regulations; (b) the Department or other
The court shall exempt such action from the payment of filing fees, except
fees for actions not capable of pecuniary estimation and shall likewise, upon prima
facie showing of the non-enforcement or violation complained of, exempt the plaintiff
from the filing of an injunction bond for the issuance of a preliminary injunction.25
A person has also the right to file any criminal or civil action, independent of the
administrative action.26
Finally, the law imposes various kinds and penalties for the three categories of
violations, namely: (1) violation of standards for stationary sources; (2) violations of
standards for motor vehicles; and (3) violations of other provisions of the Act which
range from a maximum of P100,000 pesos or 10 years imprisonment to a minimum
of P1,000 or 6 months and 1 day of imprisonment.
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In Henares, Jr., et al. v. Land Transportation Franchising and Regulatory Board (LTFRB),
et al.,29 petitioner challenged the Supreme Court to issue a writ of mandamus
commanding the LTFRB and the Department of Transportation and Communication
(DOTC) to require public utility vehicles (PUVs) to use compressed natural gas
(CNG) as alternative fuel. Citing statistics, petitioners attempted to present a
compelling case for judicial action against the bane of air pollution and related
environmental hazards. Petitioners alleged that the particulate matters (PM) – complex
mixtures of dust, dirt, smoke and liquid droplets caused detrimental effects on health,
productivity, infrastructure and the overall quality of life. They averred that with
hydrocarbons, oxide of nitrogen (NOx) it creates smog; with sulfur dioxide, it creates
acid rain; and with ammonia, moisture and other compounds, it reacts to form nitric
acid and harmful nitrates. Fuel emissions cause retardation and leaf bleaching in
plants. Another emission, carbon monoxide (CO), when not completely burned but
emitted in the atmosphere and then inhaled can disrupt the flow of oxygen in the
blood. With prolonged exposure CO affects the nervous system and can be lethal to
people with weak hearts. To counter the detrimental effects of CO, petitioner
proposed the use of CNG as an alternative which is mostly methane containing
small amount of propane and butane. It is colorless, odorless and considered the
cleanest fossil fuel because it produces less pollutants than coal and petroleum.
The issues were two-fold: Do the petitioners have legal personality to bring
their petition and should mandamus issue against respondents to compel PUVs to
use compressed natural gas as an alternative fuel?
The Supreme Court agreed that there is no dispute that petitioners have
standing to bring the case before it. However, mandamus is unavailable to pinpoint
the law that imposes an indubitable duty on respondents that will justify a grant of
the writ of mandamus compelling the use of CNG for PUVs. It appears that the
legislature should provide first the specific statutory remedy to the complex
environmental problems based before any judicial recourse by mandamus is taken.
The Petition was dismissed for lack of merit.
29 G.R. No. 158290, October 23, 2006, 505 SCRA 104 (2006).
The Ecological Solid Waste Management Act declares the policy of the State
to adopt a systematic, comprehensive and ecological solid waste management
program.30 It defines solid waste as referring to all discarded household waste,
commercial waste, non-hazardous, institutional and industrial waste, street sweepings,
construction debris, agricultural waste and other non-hazardous, non-toxic solid
waste. 31
In the implementation and enforcement of this Act, the local government units
(LGUs) shall be primarily responsible. Segregation and collection of solid waste
shall be conducted at the barangay level specifically biodegradable, compostable and
reusable waste but the collection of non-recyclable materials and special wastes shall
be the responsibility of the municipality or city.32 Multi-purpose cooperatives or
associations in every LGU can undertake projects under the provisions of the Act.33
The barangay shall be responsible for ensuing 100 per cent collection efficiency
from residential, industrial and agricultural wastes.34 A ten-year Government Solid
Waste Management Plan shall be prepared for the re-use, recycling and composting
of wastes generated in their respective jurisdictions.35 The plan shall identify the
specific strategies and activities taking into account the following such as – availability
and provision of properly designed containers or receptacles in selected collected
points for temporary storage of solid waste; segregation of different types of wastes
for re-use, recycling and composting, handling and transfer to processing or final
disposal sites; and enforcement of ordinance to effectively implement the barangay
collection system.36 There shall be established a Materials Recovery Facility (MRF)
in every barangay or cluster of barangays.
The LGU recycling component shall describe methods for developing the
markets for recycled materials and the feasibility of procurement reference for the
purchase of such products as well as the determination of price preference to
encourage its purchase.37
Republic Act No. 9003 was cited in the case of Province of Rizal, et al. v. Executive
Secretary, Secretary of Environment and Natural Resources, et al.39 The case arose at the
height of the garbage crisis in Metro Manila and its environs when the Office of the
President set aside some parts of the Marikina Watershed Reservation extending
more or less 18 hectares since 1990 for use as sanitary landfill and similar waste
disposal for the solid wastes of Quezon City, Marikina City, San Juan City,
Mandaluyong City, Pateros, Pasig City and Taguig by virtue of Proclamation
No. 635 dated August 28, 1995.
The Supreme Court directed the permanent closure of the San Mateo landfill
and reversed the Court of Appeals’ decision. It noted two facts: the San Mateo site
has adversely affected its environs and that the sources of water should always be
protected. The Court declared that the circumstances under which Proclamation
No. 635 was passed violated Republic Act No. 7160 (Local Government Code). The
Court said:
The Court added that these concerns are addressed by Republic Act No. 9003
approved on January 26, 2001 which mandates the formulation of a National Solid
Waste Management Framework which should include, among other things, the
method and procedure for the phase-out and the eventual closure within 18 months
from effectivity of the Act in case of existing open dumps and/or sanitary landfills
located within an aquifer, groundwater reservoir or watershed area. Any landfill
subsequently developed must comply with the minimum requirements laid down in
Section 40, specifically that the site selected must be consistent with the overall land
use plan of the local government unit and that the site must be located in an area
where the landfill’s operation will not detrimentally affect sensitive resources such
as aquifers, groundwater reservoirs or watershed areas. The petition was granted.
Former President Gloria Macapagal-Arroyo set a June, 2009 deadline for LGUs
to comply with RA 9003 which affirmed a December 2008 directive instructing all
government agencies and LGUs to reduce waste volume by 50% within 6 months and
thus cut emissions from dumps. Prior to this, the Environment Secretary issued in
May 2008, a 6-month ultimatum for non-compliant LGUs to shut down over 1,000
polluting dumps long outlawed by RA 9003. To date, only 2,701 barangays out of
42,000 barangays nationwide have Materials Recovery Facilities (MRFs). In Metro
Manila, only 435 barangays have MRFs. The metropolis has 1,695 barangays with
waste diversion rate of only 28%.
The Philippine Clean Water Act of 2004 provides for a comprehensive water
quality management consistent with the protection, preservation and revival of the
quality of our fresh, brackish and marine waters.41 It shall primarily apply to the
prevention, abatement and control of pollution from water sources. To pursue
sustainable development, it mandates the formulation of an integrated water quality
management framework which depends heavily on LGUs because the DENR in
coordination with the National Water Resources Board (NWRB) designates certain
areas as water quality management areas using appropriate physiographic units such
as watershed, river basins or water resources regions as criteria 42 and similar
hydrological, hydro-geological, meteorological or geographic conditions. Said
management area is governed by a board composed of mayors and governors of
member local government units and representatives of relevant national government
agencies, duly registered NGOs, water utility sector and the business sector. The
governing board shall formulate strategies to coordinate policies necessary for
The DENR shall gradually devolve to the LGUs, and to governing boards, the
authority to administer some aspects of water quality management and regulation,
including but not limited to, permit issuances, monitoring and imposition of
administrative penalties, when, upon the DENR’s determination, the LGU or the
Governing Board has demonstrated readiness and technical capability to undertake
such functions.45 A multi-sectoral group shall be established in each management
area to effect water quality surveillance and monitoring network including sampling
schedules and other similar activities.46
The “polluter pays principle” is applied under this law because any person
who causes pollution in or pollutes water bodies in excess of the applicable and
prevailing standards, shall be responsible to contain, remove and clean-up any
pollution incident at his own expense to the extent the same water bodies have been
rendered unfit for utilization and beneficial use. If he fails to do so immediately, the
DENR and other concerned government agencies shall immediately conduct
43 Id.,
44 Id., sec. 20.
45 Id., sec. 9, last par.
46 Id., sec. 5.
47 Id., art. 15.
containment, removal and clean-up operations but the expenses incurred must be
reimbursed by the persons found to have caused the pollution.48
In view of the extensive damage caused by the sinking of the tanker Solar 1
during rough weather, spilling its load of 2.1 million barrels of crude oil into the sea
and along the Guimaras-Iloilo coastline, the Oil Pollution Compensation Act of 2007
was enacted. This law implements the provisions of the 1992 International
Convention on Civil Liability for Oil Pollution Damage and the 1992 International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution damages, and provides penalties for violations thereof. It imposes
strict liability for oil pollution damage on the owner of the ship at the time of the
incident; or where the incident consists of a series of occurrences, at the time of the
first occurrence.50
The Philippine Coast Guard shall investigate, motu proprio or through written
undertaking of a complainant, any incident claim for compensation or violation of
this Act, and shall file an appropriate action with the RTC. It shall likewise provide
the complainant necessary technical evidence or any assistance, whether or not
testimonial or documentary insofar as the claim for compensation or violation is
concerned.54
The filing of this action shall only require payment of filing fees equivalent to
ten per centum (10%) of the regular Supreme Court rates. However, the indigent plaintiffs
shall be exempt from payment of docket and other lawful fees, and of transcripts of
stenographic notes. These fees shall be a lien on any judgment rendered in the case
favorable to the indigent, unless the Court otherwise provides.55
When compensation is not obtained or satisfied under the 1992 Civil Liability
Convention, the claimant may seek compensation under the 1992 Fund Convention.
The RTC shall furnish the IOPC Fund with its certified decision, together with
pertinent documents on a claim for pollution damages. If it is insufficient to satisfy
the claims of those who are entitled to compensation, the amount of compensation
of each client shall be distributed pro rata.56 The IOPC Fund may intervene as a
party to any legal proceeding instituted against the owner of a ship or his guarantor
under Art. IX of the 1992 Civil Liability Convention.57
A novel principle was adopted by the Supreme Court in the case of Metropolitan
Manila Development Authority, et al. v. Concerned Residents of Manila Bay in terms of
enforcing environmental laws.58 Respondents filed a complaint on December 29,
1999 before the RTC against several government agencies 59 for the clean-up,
rehabilitation and protection of Manila Bay. The complaint alleged that the water
quality of Manila Bay had fallen below the allowable standards set by the Philippine
Environment Code. This environmental aberration stemmed from the reckless,
wholesale, accumulated and ongoing acts or commission resulting in the clear and
present danger to public health and in the depletion and contamination of marine
life in Manila Bay, for which all the aforementioned government agencies must be
held jointly and/or solidarily liable. Thus, they were collectively ordered to clean-up
Manila Bay and to restore its water quality to Class B waters fit for swimming, skin
diving and other forms of contact recreation. Respondents alleged that the continued
neglect of petitioners in abating the pollution of Manila Bay constituted a violation
of about nine environmental laws.
Petitioners appealed to the Court of Appeals (CA) while the DENR and the
other agencies filed their petition with the Supreme Court. The petitions were sent
to the Court of Appeals for consolidation. In the main, petitioners argued that
Presidential Decree No. 1152 related only to specific pollution incidents and does
not cover cleaning in general. It raised concerns about the lack of funds for the
purpose. The CA denied the appeal and affirmed the RTC decision in toto. Hence,
the petition was filed based on the following issues:
The Supreme Court agreed with the respondents by stating that petitioner’s
obligation to perform their duties as defined by law, on one hand, and how they are
to carry out such duties on the other, are two different concepts. While the
implementation of the MMDA’s mandated task may entail a decision-making process,
the enforcement of the law or the very act of doing what the law exacts to be done is
ministerial in nature may be compelled by mandamus.
The MMDA’s duty in the area of solid waste disposal is set forth in the
Environment Code, RA 9003 and in its charter. Any suggestion that the MMDA
has the option to perform its solid waste disposal-related duties ought to be dismissed
for want of legal bases. A perusal of the other petitioners’ respective charters or
similar enabling statutes and pertinent laws would yield this conclusion. These
government agencies are enjoined, as a matter of statutory obligation, to perform
certain functions directly or indirectly relating to the clean-up, rehabilitation,
protection and preservation of Manila Bay. They are precluded from choosing not
to perform these duties for the enabling laws and issuances are in themselves clear,
categorical and complete as to what are the obligations and mandate of each agency
under the law.
government agencies, when appropriate, “to take such measures as may be necessary
to meet the prescribed water quality standard.” Section 17 of the Environment
Code comes into play and the specific duties of the agencies to clean up are mandated
even if there are no pollution incidents staring at them. Moreover, they seem to
overlook the fact that the pollution of Manila Bay is of such magnitude that it is
impossible to draw the line between a specific and a general pollution incident. Also,
Section 16 of RA 9275, previously Section 20 of PD 1152, covers a general clean-up
situation. The clean-up and/or restoration of Manila Bay is only an aspect and the
initial stage of the long-term solution. After the rehabilitation process, it is imperative
that wastes and contaminants found in the rivers, inland bays and other bodies of
water be stopped from reaching Manila Bay.
The Petition was denied and the CA and RTC decisions were affirmed but
with modifications in view of subsequent developments or supervening events in
this case. The DENR, as the primary government agency responsible for its
enforcement and implementation, was directed to fully implement its Operational
Plan for the Manila Bay Coastal Strategy for its rehabilitation, restoration, and
conservation of Manila Bay at the earliest possible time. It was ordered to call
regular coordination meetings with concerned government agencies to ensure
successful implementation of the aforesaid plan of action in accordance with indicated
completion schedules. The heads of petitioner agencies, in line with the principle of
“continuing mandamus” shall, from the finality of this decision, submit to the Court
a quarterly progressive report of the activities undertaken in accordance with this
Decision.
Atty. Antonio A. Oposa, Jr. filed a motion to cite in contempt the government
officials concerned for failure to report to the Supreme Court.60 Except for the
DENR and MMDA, which have submitted their reports, the Supreme Court ordered
them to comment in ten days why they should not be cited in contempt. To date,
there is a Technical Committee assisting the Supreme Court in assessing the report
on the clean-up of Manila Bay.
In Bangus Fry Fisherfolk, et al. v. Lanzanas, et al.,61 an ECC was issued in favor of
respondent National Power Corporation authorizing the construction of a temporary
mooring facility in Minolo Cove, Sitio Minolo, San Isidro, Puerto Galera, Oriental
Mindoro, which has been declared as a mangrove area and breeding ground for
bangus fry, an eco-tourist zone. Petitioners filed a complaint with the Regional Trial
Court of Manila, for the cancellation of the ECC and for the issuance of a writ of
injunction. The trial court dismissed the complaint for non-exhaustion of
administrative remedies and for lack of jurisdiction to issue the injunctive relief.
Hence, the filing of the petition in the High Court.
60 Alcuin Papa, “6 GMA Men to Face Contempt Raps: Eco-lawyer Presses Manila Bay Clean-up,” Philippine
Daily Inquirer, August 24, 2009, p. A-1; A-10.
61 G.R. No. 131442, July 10, 2003, 405 SCRA 630 (2003).
In denying the petition, the Supreme Court ruled that the petitioner’s cause
of action is the alleged illegality of the issuance of the ECC and such complaint is
not capable of pecuniary estimation. It falls within the exclusive and original
jurisdiction of the RTCs under Section 19(1) of Batas Pambansa Blg. 129, as amended
by RA 7691. Anent the jurisdiction to issue injunctive writs, only the Supreme
Court can do so under PD 1818 and later under RA 8975 which superseded it.
The Court likewise ruled that petitioners bypassed the Secretary of the DENR
when they immediately filed their complaint with the Manila RTC, depriving the
DENR Secretary the opportunity to review the decision of his subordinate. Under
the Procedural Manual for DAO 96-37 and applicable jurisprudence, petitioners’
omission rendered their complaint dismissible for lack of cause of action. The RTC
decision was affirmed.
The Biofuels Act of 2006 aims to reduce the country’s dependence on imported
fuels with due regard to the protection of public health, the environment and natural
resources. It mandates to develop and utilize indigenous renewable and sustainably-
sourced clean energy sources as well as to mitigate toxic and greenhouse (GHG)
emissions.62 Thus, all liquid fuels for motors and engines sold in the Philippines
shall contain locally-sourced biofuels components by setting time limits on the blending
of bioethanol with gasoline fuel.63 To encourage investments in the production,
distribution and use of locally-produced biofuels, additional incentives are given
such as specific and value-added taxes, exemption from waste water charges, and
financial assistance from government institutions. To implement and monitor the
supply and utilization of biofuels and biofuel blends as well as to recommend
appropriate measures in cases of shortage of feedstock supply, a National Biofuel
Board (NBB) is established, with the Secretary of the Department of Energy as
Chairperson. 64
The Department of Energy (DOE) shall also establish the Renewable Energy
Market (REM) and shall direct the Philippine Electricity Market Corporation (PEMC)
to implement changes to the “Wholesale Electricity Spot Market” (WESM) in order
to incorporate rules specific to the operation of the REM under the WESM. The
PEMC shall establish a Renewable Energy Registrar which shall issue, keep, verify
RE certificates corresponding to energy generated from eligible Renewable Energy
facilities to be used for compliance with the RPS.68 The DOE shall establish a
Green Energy Option program which provides end-users the option to choose
Renewable Energy resources as their sources of energy. The end-user who will
enroll under this program should be informed by way of its monthly electric bill,
how much of its monthly energy consumption and generation charge is provided by
Renewable Energy facilities. These distribution utilities shall enter into net-metering
agreements with qualified end-users who will be installing the RE system.69
General incentives for renewable energy projects and activities, including hybrid
systems are income tax holidays, duty-free importation of Renewable Energy
machinery, equipment and materials, special realty tax rates on equipment and
machinery, net operating loss carry-over, corporate tax rate, zero percent value-added
tax rate, cash incentive of renewable energy developers for missionary electrification,
tax exemption of carbon credits and tax credit on domestic capital equipment and
services.72
3.6 Republic Act No. 9512 (2008), otherwise known as the “National
Environmental Awareness and Education Act of 2008”
67 Id., sec. 7.
68 Rep. Act No. 9513 (2008), sec. 8.
69 Id., sec. 9.
70 Id., sec. 13.
71 Id., sec. 14.
72 Id., sec. 15.
The DepEd, CHED, TESDA, DENR, DOST and other relevant agencies in
consultation with the experts on the environment and the academe, shall lead in the
implementation of public education and awareness programs on environmental
protection and conservation through collaborative inter-agency and multi-sectoral
effort at all levels.74 The DENR has the primary responsibility of periodically
informing all agencies concerned on current environmental updates, including
identifying environmental education issues for national action and providing strategic
advice on environmental education activities. The DepEd, CHED, TESDA, DENR,
DOST, DSWD and barangay units shall ensure that the information is disseminated
to the students.75
The DOST is mandated to create programs that will ensure that students
receive science-based quality information on environmental issues to encourage the
development of environmental-friendly solutions, devices, equipment and facilities.76
The CHED and TESDA shall include environmental education and awareness
programs and activities in the National Service Training Program under Republic
Act No. 9163 as part of the Civil Welfare Training Service component required for
all baccalaureate degree courses and vocational courses with a curriculum of at least
two (2) years.77
3.7 Republic Act No. 9729 or the “Climate Change Act of 2009”
This statute recognizes the vulnerability of the Philippine archipelago and its
local communities, particularly the poor, women, and children to potential dangerous
consequences of climate change such as rising seas, changing landscapes, increasing
frequency and/or severity of droughts, fires, floods and storms, climate-related illness
and diseases, damage to ecosystems, biodiversity loss that affect the country’s
environment, culture, and economy.81
Among the powers and functions of the Commission are: ensure the
mainstreaming of climate change in synergy with disaster risk reduction into the
national, sectoral and local development plans and programs; create an enabling
environment that shall promote broader multi-stakeholder participation and integrate
climate change mitigation and adaptation; formulate strategies on mitigating CHG
and other anthropogenic causes of climate change; and formulate and update guidelines
for determining vulnerability to climate change impacts and adaptation assessments
and facilitate the provision of technical assistance for their implementation and
monitoring.86
84 Id., sec. 8.
85 Id., sec. 5.
86 Id., sec. 9
87 Id., sec. 10.
88 Id., sec. 11.
The Local Government Units (LGUs) shall be the frontline agencies in the
formulation, planning and implementation of climate change plans in their respective
areas, consistent with the Local Government Code, the Framework and the Action
Plan.91
Government agencies such as the DepEd, DILG, DENR, DFA, the Philippine
Information Agency, as well as government financial institutions, are given their
respective roles to ensure the effective implementation of the framework strategy
and program on climate change.92
Among the Principles on the Role of Law and Sustainable Development adopted
at the Global Judges symposium held in Johannesburg, South Africa on August 20,
2002, is that “an independent judiciary and judicial process is vital for the
implementation, development and enforcement of environmental law, and that
members of the Judiciary, as well as those contributing to the judicial process at the
national, regional and global levels, are crucial partners for promoting compliance
with, and the implementation of international and national environmental justice.”93
On July 5-6, 2007, the Philippines participated in the Asian Justices Forum on
the Environment – Sharing Experience to Strengthen Environmental Adjudication
in Asia which was held at Mandaluyong City, with former Chief Justice Reynato S.
Puno as keynote speaker. As a result, Chancellor Ameurfina A. Melencio-Herrera
of the Philippine Judicial Academy made the following recommendations:
Initially, all judges and clerks of court of first and second-level courts94 were
ordered to conduct an inventory of all environmental cases. Likewise, the Court of
Appeals submitted a list of 74 DENR cases filed from November 2001 to June 2007.
Pursuant to this, the PhilJA proceeded with the training of judges using the
Academy’s publications, namely, Greening the Judiciary; Learning Modules on the
Environment (2005) and Environmental Law Training Manual (2006) which was published
with the assistance of leading environmentalists.
Ensuring that the third-generation human rights are upheld, the Supreme Court
held a Forum on Environmental Justice: Upholding the Right to a Healthful and
Balanced Ecology on April 16-17, 2009, simultaneously in Baguio, Iloilo and Davao
Cities. Participants in the Forum included judges, non-government organization
members, government representatives, the academe and other stakeholders. It has
led to the signing of Multi-sectoral Memorandum of Agreement to further strengthen
and implements of the country’s environmental laws. It also resulted in valuable
inputs on the Draft Rule of Procedure for Environmental Cases, which reflects
concerns and recommendations of all stakeholders and covers all stages of litigation.96
On April 13, 2010, the Supreme Court en banc approved the Rules of Procedure
for Environmental Cases,97 effective April 29, 2010. The Rules govern the procedure
in civil, criminal and special civil actions before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts
and Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules, and regulations.98
95 A.M. No. 07-11-12-SC, dated November 20, 2007 as implemented by SC Adm. Order No. 23-08 dated January
28, 2008, Designation of Special Courts to Hear, Try and Decide Environmental Cases.
96 “High Court Convenes Forum on Environmental Justice,” 10 Bench Mark 1 (March 2009).
97 A.M. No. 09-6-8-SC, dated April 13, 2010.
98 Id., sec. 2.
5. Conclusion
100 “RA 9003 Just a Scrap of Paper,” Philippine Daily Inquirer, March 24, 2009, p. A-14.
An Environmental Writ:
The Philippines’ Avatar
Francis N. Tolentino*
I. Introduction
“A world you didn’t think still existed… [an] island paradise… Where
tropical nights rain stars. Dazzling blue waters beckon to the pristine
white sands bleached even whiter by the sun. And coconut trees bend to
listen to the waves. Where life is an idyll and smiles are dreamy.”1
disposed in an environmentally sound manner. Less than ten percent (10%) of the
country’s total population is connected to sewers and others rarely maintain adequate
on-site sanitation.”7
“In its race for modernization, the Third World has blindly adopted the
Western model for “development” – of capital and resource intensive
industrialization, urbanization and mechanization, and chemicalization
of agriculture – in a false belief that this type of rapid growth will
eventually trickle down and eradicate poverty. As a consequence, we
have paid a heavy price. Development that does not respect nature
rebounds on man. Resources are exhausted, ecosystems collapse, species
disappear, and people’s lives, health, livelihoods, and their very survival
are threatened.”9
These predicted crises have given birth to a new world view, which mandates
government agencies and decision-makers to take into account environmental values
together with other governmental considerations. Particularly, these urgencies have
prompted the Philippine judiciary to take a more active role in the enforcement of
environmental values and the protection of environmental rights.10
On a policy level alone, the Philippines is said to have one of the world’s most
developed approaches to environmental protection and preservation. It is a
fundamental State policy under Section 16, Article II of the Constitution, which
provides that:
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.
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- 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 mankind.
Gatmaytan believes that this statement changed the way in which the Principles
and State Policies in the Constitution were viewed and invoked. According to him:
“Under the ‘public trust doctrine,’ which is a common law concept, all
public lands of the nation are held in trust by the government by the
people for the people of the whole country, with the government having
the duty under the doctrine to protect and preserve the lands for the
public’s common heritage.”16
The origin of this doctrine can be traced to Roman law concepts of common
property. “Under Roman law, the air, the rivers, the sea and the sea shore were
incapable of private ownership.”17 Since then, the “basic premise of the trust remains
fundamentally unchanged.”18 It serves two purposes: “it mandates affirmative state
action for effective management of resources and empowers citizens to question
ineffective management of natural resources.”19
Traditionally, judicial power has been restricted to the court’s authority “to
settle actual controversies between real conflicting parties through the application
of a law.”23 However, since the celebrated case of Marbury v. Madison,24 judicial power
has been reinvented to include the duty to strike down laws in opposition to the
Constitution. In the field of environmental law enforcement in the Philippines, judicial
review is considered the major tool by which the Supreme Court has affected both
its evolution and policy. La Viña writes that “the judiciary influences environmental
management through its power of judicial review. Specifically, courts:
However, beyond the power of the Court to settle actual controversies presented
before it, the Court likewise has the power to promulgate rules to guide future
conduct. Under Sec. 5(5) of Art. VIII of the Constitution:
As presented above, the Constitution confers upon the Supreme Court the
power to promulgate not only procedural rules in relation to the practice of law but
encompasses an expanded rulemaking power in the enforcement of constitutional
rights.28 The rationale for this mandate was explained by Chief Justice Puno as a
reaction by the drafters of the 1987 Constitution in their reexamination of the balance
of powers between the three branches of government. He states:
“The re-examination easily revealed under the then existing balance of power, the
Executive, thru the adept deployment of the commander-in-chief powers, can run
roughshod over our human rights. It further revealed that a supine legislature can
betray the human rights of the people by defaulting to enact appropriate laws, for there
is nothing you can do when Congress exercises its power to be powerless. It is for this
reason and more, that our Constitutional Commissioners, deemed it wise to strengthen
the powers of the Judiciary, to give it more muscular strength in dealing with the non-
use, mis-use, and abuse of authority in government.”29
It must be noted that the 1987 Constitution was drafted with a “mission to
carry out the socio-economic agenda of the People Power revolution.”30 At a time
when political and social revolution were the foremost concerns, the authors of the
Constitution sought to end judicial submissiveness and created a more empowered
court, subject only to the limitation that this power cannot be exercised to alter
substantive rights.31
Since the right to a balanced and healthful ecology has been established as an
actionable right, it then falls within the role of the courts to interpret this
constitutional provision and provide a procedure for its enforcement.
“Prior to the late 1970s, the Supreme Court’s decisions were generally
characterized by judicial restraint. It avoided confronting Parliament on
issues of economic regulation and civil liberties, preferring to help establish
the legitimacy of the Central government. It was not until the emergency
period in the mid-1970s that the Court began to establish itself as a
powerful activist force. In 1975, in response to charges of election fraud
in the election of 1971, Prime Minister Indira Gandhi declared a state of
emergency and suspended civil rights across the country to maintain control
over her position. She forced a number of economic reforms through
Parliament, as well as some more controversial legislation, including a
constitutional amendment that confirmed her election in 1971. Stepping
forward in such an uncertain era as a protector of the people, the Court
intervened in the case of Indira Gandhi v. Raf Narain and declared the
amendment unconstitutional.
In the Bandhua case, the Court decided to “abandon the laissez-faire approach in
the judicial process particularly where it involves a question of enforcement of
fundamental rights and forge new tools” to make “fundamental rights meaningful
for the large masses of people.” In this latter ruling, two major developments were
declared by the Court. First, that the right to a healthy environment is a fundamental
right and that in enforcing this right, the Courts liberalized the rule on standing.33
32 J. Mijin Char, A Critical Examination of the Environmental Jurisprudence of the Courts of India, 10 Alb. L.
Envtl. Outlook J. 197 (2005).
33 Id.
34 Id.
This same objection is presented with regard to the proposed judicial reform.
Since the environmental writ will be the product of the Supreme Court’s initiative,
there is a danger that judicial power over environmental cases may be extended
beyond the limits of the Court’s authority as embodied in the Constitution. It is
feared that this unwarranted broadening of the powers of the Court will violate the
doctrine of separation of powers and concomitantly, the system of checks and balances
laid down to prevent arbitrary State action. Further, the dissenting opinion of a US
Supreme Court Justice in the leading environmental case Sierra v. Morton is still
relevant:
The invocation of the doctrine of separation of powers and the charge of judicial
activism, however, fails to justify the abandonment of the proposed judicial reform.
Besides the fact that it has been established that it is within the Court’s rule-making
power to promulgate such rules, the opposition loses force when viewed in light of
the history of two writs adopted and currently enforced by the Court – the Writs of
Amparo and Habeas Data. Particularly, in the case of the Writ of Amparo, the
same objections were raised and struck down as being misplaced and at best,
inadequate.
35 S.C. Writ Pet. (Civil), M.C. Mehta v. Union of India (July 28, 1998) (No.13029/1985), available at http://
www.elaw.org/resources/text.asp?ID=1051 [hereinafter Delhi Pollution Case 1998].
36 Armin Rosencranz and Michael Jackson, The Delhi Pollution Case: The Supreme Court of India and the
Limits of Judicial Power, 28 Colum. J. Envtl. L. 223 (2003).
37 S.P. Sathe, Judicial Activism: The Indian Experience, Wash. U. J.L. & Pol’y 29, 40 (2001).
38 405 U.S. 727 (1972).
When the Rule on the Writ of Amparo took effect last October 24, 2007,39
quick opposition emerged when “some have decried that the Supreme Court has
become an ‘activist court,’ contrary to its traditional mandate of ‘passivity.’40 This
objection, however, was quickly muted because of the majority consensus that the
current rule to protect the right of the people to life, liberty and security, in place at
that time, was viewed as inadequate, viz:
Thus, the judicial attempt to fill the gaps in the procedural remedies to protect
these constitutional rights was preferred and supported.
The same situation presently exists in the development of the Rule on the
Writ of Gaia. Since there are recognized procedural lapses in the enforcement of
environmental laws, the more active role that the judiciary has taken should not be
a deterrent to the adoption of these rules.
In recent years, the Court has actively utilized its rule-making power through
its adoption of the rules on two writs complementary to the writ of habeas corpus.
Aside from the Writ of Amparo, which has already been described above, the Court
also adopted the Rules on the Writ of Habeas Data. While these two writs were
conceived to address extrajudicial and forced disappearances, the latter differs as it
primarily addresses the concern of access to information, a privilege which the Writ
of Gaia likewise seeks to provide. Before delving into the substantive content of the
proposed writ, however, an overview discussion on nature and functions of writs is
beneficial.
44 Vincente G. Sinco, Philippine Political Law: Principles and Concepts, 128 (1962).
45 Cited in. Reynaldo B. Aralar, Separation of Powers and Impeachment. 13 (2004).
46 Garner, Supra Note 15.
47 Id., citing W.S. Holdsworth, Sources and Literature of English Law 20 (1925).
One of the writs commonly seen as part of the common law of England is the
Writ of Ne Exeat Regno. This writ is issued by the king when he wants to “prohibit
any part of his subjects from going into any parts without license.” By virtue of this
writ, “subjects owed an obligation to fight for the king and to ensure [that] they were
available…” The purpose behind the issuance of this writ is to protect the interests
of the State and to restrain departures of individuals owing taxes to the government.
At present, in Pennsylvania and Illinois, this writ has evolved to contemplate cases
setting equitable bail and restrain debtors from leaving the jurisdiction, at the suit
of the private creditors.48
Other examples of writs, which originated from the English government include:
the Writ of Scire Facias, which was issued in the name of the king to show cause why
patents of land should not be repealed or revoked; and the Writ of Procedendo Ad
Justicium, which is issued when judges of any subordinate court cause delay to the
parties, by not rendering judgment when they ought to do so.49
Aside from these, this jurisdiction also has three major writs, which are relevant
– certiorari, mandamus and injunction. Although these three are different in their
nature and functions, (i.e., certiorari seeks to annul, mandamus seeks to mandate
and injunction seeks to prevent) common to these writs is the lack of speedy, adequate,
available remedy at law. They may be invoked only in cases where great and
irreparable injury to the plaintiff is sought to be avoided. Similar to these remedies,
the proposed Writ of Gaia seeks to “address violations of [environmental] laws
involving ‘such magnitude as to prejudice public welfare,’ and for which the delay of
a protracted trial must be urgently avoided.
Unlike the Writ of Habeas Corpus, which is an English innovation, and the
Writ of Amparo, which was first invoked in Latin America, the Writ of Gaia will be
a purely Filipino invention. Chief Justice Puno himself confirmed this at a forum,
saying that “we are proud to announce to the world that we have a writ that will
protect our right to a balanced and healthy ecology which does not come from the
West or Latin America. It will come from the Philippines itself.”50 Some of the salient
features and the needs that these proposals seek to address are discussed below.
48 Id.
49 Id.
50 Edmer Panesa, “SC to Introduce Writ of Kalikasan,” available at http://www.mb.com.ph/articles/241225/sc-introduce-
writ-kalikasan, 31 January 2010, (last visited 2 February 2010).
promulgated in the 1970’s, the EIS System remains underutilized because of several
weaknesses found in its implementation. Gatmaytan highlights these as follows:
Third, there are “rampant violations of the law” due to the insignificant
penalties imposed under the system.
The Rules on the Writ of Gaia seek to remedy these infirmities by mandating
a court-supervised EIS to be conducted, which will command the responsible agencies
to prepare an EIS strictly in accordance with the comprehensive requirements of
the law. This EIS will, then, be evaluated by the court having jurisdiction over the
petition to ensure that compliance thereto was not haphazardly made. Evaluation
also ensures that the requirements of public participation and social acceptability of
the project are met. The mandatory nature of this order seeks to remedy the hesitation
of the national agencies to make a detailed statement, despite the political policy
towards prioritizing investments and development rather than environmental
concerns.
In the end, the availability of this measure hopes to echo the US Supreme
Court’s ruling on the case of Calvert Cliffs v. US Atomic Energy,52 which requires that
environmental values be considered together with other governmental concerns in
assessing whether or not a project ought to continue and that “considerations of
administrative difficulty, delay or economic cost will not suffice to strip the section
of its fundamental importance.”
Another weakness that this measure seeks to address is the lack of active
public participation. This is especially important in the case of the local communities
that are directly affected by the project since they have the greatest interests to
preserve – that no significant and irreparable damage or risk be done to the
environment. Thus, in the Writ of Gaia, public participation will be mandated by the
court. It will even require comments made in the draft of the EIS to be attached to
the final EIS. Through this provision, it is hoped that public participation will not be
viewed merely as an inconvenient procedural requirement, but rather as a meaningful
means to include the information gained from the public’s sentiment into the hands
of the country’s decision-makers.
The Court followed this up with the Draft Rule of Procedure for Environmental
Cases (“Draft Rules”), proposed in 2009. These proposed rules govern the procedure
for civil, criminal and special civil actions before the designated green courts.53 These
rules are instructive as to their possible inclusion in the Rules on the Writ of Gaia.
The Draft Rules provide for an Environmental Protection Order (EPO), defined
as “a written order issued by the court directing or enjoining any government agency
or person to undertake activities aimed at protecting, preserving, rehabilitating or
restoring the environment during the pendency of the case involving a violation of
an environmental law.”54
After judgment, the court may convert the temporary EPO to a writ of
continuing mandamus. The court shall require the violator to submit quarterly
periodic reports detailing the progress of the execution of the judgment. The court
may also require the concerned government agency to monitor such progress.
The writ shall terminate upon a sufficient showing that the order has been
implemented to the satisfaction of the court in accordance with Section 14, Rule 39
of the Rules of Court.
be insured pro-actively and sought at the first instance, applying the precautionary
principle as will be discussed in the subsequent sections.
Despite the designation of the Supreme Court of first and second level courts
to serve as green courts, during a national conference held to discuss the
environmental issues faced by the country’s courts, it was pointed out that more
than 3,000 environmental cases remained unresolved nationwide.56
The delay in the proper resolution of these cases makes the adoption of the
Writ of Gaia imperative considering that the unimpeded damage done to the
environment may merely result in a hollow victory for these cases.
In his speech, Chief Justice Puno also posed the question of “how further
down should the courts lower the threshold on locus standi?” This question was
propounded in the context of the pending case filed by the “resident sea mammals
of the Tanon Strait,” against the Japan Petroleum Exploration Company, Ltd., which
seeks to stop further offshore exploration in the interest of protecting the
“petitioners” habitat.58
In this regard, the Chief Justice expressed that it was necessary that any rule
formulated must “strike a proper balance between the need to encourage citizen’s
suits and the danger that unregulated citizens’ suits may bring about nuisance cases.”59
56 Bordadora, Norman, SC Eyes New Writ to Speed Up Environmental Cases, 31 January 2010, available at http://
newsinfo.inquirer.net/ breakingnews/nation/view/20100131-250512/SC-eyes-new-writ-to-speed-up-environmental-
cases (last visited 10 March 2010).
57 Marifel Moyano, Green Benches, 10 January 2008, available at http://www.haribon.org.ph/Topic/32/Green-Benches,
(last visited 13 February 2010.
58 Reynato S. Puno, Chief Justice of the Supreme Court. Opening Remarks at the Forum on Environmental Justice:
Upholding the Right to a Balanced and Healthful Ecology held on April 16-17 2009, at the University of the
Cordilleras, Baguio City.
59 Id.
Bonine writes that “standing to sue is the first step in access to justice.”60 This
is even more so in the field of environmental and other areas of public interest law,
where citizen’s suits for enforcement make valuable and groundbreaking
contributions. In recognition of this, many countries have liberalized their own rules
on standing to sue, providing for these either in their Constitutions or in judicial
decisions.
The Philippine rules on standing to sue are merely procedural, and have been
relaxed in cases of paramount or transcendental importance. Specifically, in Integrated
Bar of the Philippines v. Zamora,61 the Supreme Court en banc stated that:
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. 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. Thus, when the issues raised
are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, the IBP has advanced
constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. (xxx) …the legal
controversy raised in the petition almost certainly will not go away. It
therefore behooves the Court to relax the rules on standing and resolve
the issue now, rather than later.
60 John E. Bonine, Standing to Sue: The First Step in Access to Justice (School of Law, University of Oregon, 1999), in
http://www.law.mercer.edu.elaw/standingtalk.html (last visited 6 March 2010).
61 G.R. No. 141284, 15 August 2000.
62 cited in Jumamil v. Café, et al, G.R. No. 144570, 21 September 2005.
Last, adoption of the rule that environmental cases are imbued with public
interest, where rules on standing and cause of action may be interpreted
liberally.63
The objection that such a liberal approach to standing presents a “danger that
unregulated citizens’ suits may bring about nuisance cases” was not confirmed by
the Australian experience. Justice Stein noted that the open standing provisions
“never exceeded 20% of registrations for civil enforcement and judicial review”
brought by individual citizens and NGOs in any year. If anything, the availability of
open standing provisions “highlighted the significant procedural hurdles inhibiting
access to the court in environmental cases,” such as the high of costs of litigation.65
In the Philippines, “While many NGOs, POs, other community groups and
environmental law practicioners have expressed [interest] in or are already currently
engaged in environmental law enforcement, their inability to prosecute criminal
actions constitute barriers to effective enforcement. Save for the provisions of the
Clean Air Act and Ecological Solid Waste Management Act on citizen’s suits, there
is no legal recognition of citizens’ right to bring actions for violations of environmental
laws.”66
The proposed Writ of Gaia seeks to address this and may be used as an avenue
through which greater access to courts is provided by having more liberalized rule
on standing.
Again, it is the court-supervised EIS System of the Writ of Gaia that will act as
the main mechanism that will give life to these declarations of principles.
In the Philippines, “While the legal framework for public participation is already
strong, one glaring flaw is the absence of an effective mechanism to enforce
compliance with the requirements set by law.”68 Therefore, it is proposed that the
Writ of Gaia be employed in order to act as an effective deterrent and a speedy
remedy against non-compliance with public participation requirements.
Another feature, which the Writ of Gaia intends to advance is the inclusion in
its provisions of the so-called Natural Resource Damage (NRD) Liability.
environmental damage, the adoption of the NRD in the rules serves a dual purpose:
first, it imposes the costs on the perpetrator themselves; and second, it alleviates
societal costs associated with the continuous depletion of natural resources.
Chief Justice Puno likewise noted that proving damages in environmental cases
was often difficult. This was because these were often based on statistics and
probabilities and as such could not adequately predict future impacts and effects. In
this regard, he suggested an exploration of the adoption of the precautionary principle.
Tolentino traces the origin of this principle in the mid-1980s “as part of the
domestic laws of the then West Germany.” He goes on to state that since then, it
“has been incorporated in many international environmental treaties since 1983”
and cites that the “1992 Bergen Ministerial Declaration on Sustainable Development
in the ECE Region… was the first international instrument to consider the
Precautionary Principle as part of customary international law, and therefore binding
on all signatory states…”73
The precautionary principle was applied by the Indian High Court in the case
of Andhra Pradesh Pollution Control Board vs. MV Nayudu.74 In justifying the principle,
the Judges referred to Charmian Barton, from the Harvard Law Review, as follows:
73 Francis N. Tolentino, The Precautionary Principle: Closing the Gap between International Trade Law and
Biotechnology (2009) (unpublished, Tulane Law School) (on file with author).
74 Appeal (civil) 368-371 of 1999 Appeal (civil) 372 of 1999 Appeal (civil) 373 of 1999.
75 Id.
The adoption of this principle likewise shifted the burden of proof required
for environmental cases. In these instances, a reversal was warranted, such that “it is
necessary that the party attempting to preserve the status quo by maintaining a less-
polluted state should not carry the burden of proof and the party, who wants to alter
it, must bear this burden.” The risk of harm to the environment or human health
was to be determined according to a “reasonable persons test.” Stated otherwise,
The precautionary principle suggests that where there is an identifiable risk of serious
or irreversible harm, including, for example, extinction of species, widespread toxic
pollution in major threats to essential ecological processes, it may be appropriate to
place the burden of proof on the person or entity proposing the activity that is potentially
harmful to the environment76.
The Philippine Supreme Court can be said to have taken a similar approach in
Hernandez v. National Power Corporation (NAPOCOR).77 The Court issued an Injunction
against NAPOCOR’s installation of transmission lines which would pass through
the area where their homes were located. Studies showed that close proximity to the
electromagnetic fields generated by these lines increased the incidence of illnesses
such as cancer and leukemia. Justifying its issuance, the First Division, through
Justice Chico-Nazario ratiocinated that:
True, the issue of whether or not the transmission lines are safe is essentially evidentiary
in nature, and pertains to the very merits of the action below. In fact, petitioners
recognize that the conclusiveness of their life, health and safety concerns still needs to
be proved in the main case below and they are prepared to do so especially in the light
of some studies cited by respondent that yield contrary results in a disputed subject.
Despite the parties’ conflicting results of studies made on the issue, the possibility that
the exposure to electromagnetic radiation causes cancer and other disorders is still,
indeed, within the realm of scientific scale of probability.
(xxx)
Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCOR
project which is aimed towards the common good of the people. But, is the promotion
of the general welfare at loggerheads with the preservation of the rule of law? We
submit that it is not.
In the present case, the far-reaching irreversible effects to human safety should be the
primordial concerns over presumed economic benefits per se as alleged by the NAPOCOR.
Consistent with the ruling in Hernandez, Gatmaytan has made suggestions with
regard to the quantum of evidence needed for the issuance of injunctive relief. He
has proposed that the quantum of evidence be reduced to probable cause. As such,
the applicants would only have to show that:
76 Id.
77 G.R. No. 145328, 23 March 2006.
…the acts they are attempting to enjoin would probably cause the damage
they are attempting to prevent. The danger to the environment should
be the primary consideration in these cases. To require a higher standard
would risk the possibility that the environment would be irreversibly
damaged while the courts attempt to resolve the merits of the case.78
Epidemiological data establishes the “fact that the substances are capable of
producing the injuries suffered” and as such measures the probability that the injuries
were caused by the substances in question. “The evidence offers at least a
circumstantial evidence of proximate cause.”81 This data is then supported by expert
testimony in accordance with Rule 130 Section 49 of the Revised Rules of Evidence.
The strict liability principle “imposes liability whether or not there is fault,
negligence, malice or intent.” This principle is already existent in the New Civil
Code and Consumer Act of the Philippines (R.A. 7394) with regard to product defects
and liabilities.82
the chemicals generated by Acid Mine Drainage and mine tailings on the marine and
river resources which local communities consume (as has been the case of Rapu-
Rapu Island in Albay and on the island province of Marinduque) and the hazards
posed by large scale energy projects (i.e., the proposed coal-fired power plant along
the Saranggani Bay).
CONCLUSION
The promise of a Writ of Gaia and the adoption of the doctrine of continuing
mandamus in the Philippine legal arena represent efforts to “turn soft law into hard.”83
The principles in the statutes are no longer mere aspirations or pretty words, and
the courts are no longer limited to what has generally perceived as obiter in Oposa.
Environmental law is becoming substantive law, such that it now warrants rules that
are all its own.
sustain life for some time in the future.86 This is what makes environmental judicial
decisions all the more important. They are bigger than the now, so to speak. The
only difference is that the environmental dilemma confronting us is not part of
cinema’s world of make-believe.
86 Commonwealth of Puerto Rico v. The SS Zoe Colocotroni, 682 F.2d 652 (1st Cir. 1980).
Our system of education did not spring from a vacuum. It has historical, legal
and philosophical roots. From a historical standpoint, the Philippine educational
system has been regarded as a hybrid, reflecting the country’s cultural and colonial
history. Education laws and policies that have been enacted and implemented
throughout history can attest to this. As products of the particular historical, socio-
economic, political and cultural conditions prevailing at the time of their passage,
they have been made to serve or address the challenges and prospects faced by the
country and society at those times (De Belen, 2003: 2). A simple perusal of the
language of these laws and policies reveals the legal foundation of education. However,
one must pierce into their legal texts and analyze the dominant political interests,
policies, behavior and attitudes of both the rulers (the government) and the ruled
(the people) to understand their historical and philosophical foundations (ibid., p. 5).
* Some portions of this article were lifted from the book Educational Laws and Jurisprudence in the Philippines
by Rustico T. De Belen to be published this year.
** BA (Political Science), UP Diliman; BSN, St. Dominic Savio College; MNSA, National Defense College of the
Philippines; LLM, San Beda Graduate School of Law, and PhD (Peace and Security Administration), Bicol
University Camp Crame Peace Program. He is currently the Deputy Director of the Supreme Court Mandatory
Continuing Legal Education Office and was formerly the Assistant Secretary and OIC-Undersecretary for
Policy Planning and Legal Affairs of the Department of Agrarian Reform (DAR). He is the author of several
books: Education Laws and Jurisprudence (2010), Philippine Laws on Food, Drugs and Cosmetics (2010),
Medical Jurisprudence (2009), Dental Jurisprudence (2009), A Praxis in Community Health Nursing (2008),
Public Health Care for Community Development (2008), Nursing Law, Jurisprudence and Professional Ethics
(2007), to mention a few.
Thus, to fully understand the legal, historical and philosophical bases of Philippine
education over a period of time, it is essential to go beyond its constitutional mandate,
statutory policies and jurisprudence in education.
Elevazo and Elevazo (1995) support the author’s view on the study of the
history and philosophy of Philippine education, thus:
This paper is divided into the following periods of education history: (a) pre-
historic and early education history, (b) colonial, revolutionary and commonwealth
period, (c) post-liberation Philippine education, and (d) post-EDSA educational system.
Notably, the colonial, revolutionary and common wealth period covers the three
important colonial periods in Philippine education history – Spanish, American and
Japanese, the revolutionary and commonwealth periods of Philippine history.
phase of Philippine history - the written history of what would become the Philippine
archipelago. It is presented here to enhance the discussion of pre-historic and early
education history of the Philippines.
For emphasis, 900 AD is now the recognized date of the first surviving written
record to come from the Philippines, the Laguna Copperplate Inscription (LCI), a
copperplate measuring 8 x 12 inches which was recovered in a sand quarry at Barangay
Wawa, Lumban, Laguna in 1989 (Tiongson, 2008). The plate has an inscribed date
of Saka era 822, corresponding to April 21, 900 CE (Common Era). Written in the
Kawi Script, it contains many words from Sanskrit, old Javanese, old Malay and old
Tagalog. It is evidently a legal document because it released its bearer, Namwaran,
from a debt in gold amounting to 1 kati and 8 suwarnas (865 grams) (ibid.). It also
mentions Tondo, Pila and Pulilan in the area around Manila Bay and Medan (or
rather, the Javanese Kingdom of Medang), Indonesia, apparently as places of trade
or business during that time.
Romanized transcription
Laguna Copperplate Inscription (900 AD, which was discovered in 1987, is said to be more
advanced script than the other systems of writing thus far discovered in the country.
Source: http://www.mts.net/~pmorrow/lcieng.htm, accessed on 04/22/10.
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Philippine history has long recognized the influences of ancient ancestors such
as Negritos, Indonesians and Malays in our system of education. Indigenous peoples
and indigenous cultural communities are now the more politically-correct terms.
Aside from these early groups who came and settled in the Philippines, there were
also ancient foreign traders such as Chinese, Hindus, and Arabs who influenced the
Filipino people’s way of life. The Malays are credited with bringing us their system
of writing known as Alibata, the ancient Filipino alphabet, although some historians
and anthropologists say that it came directly from the ancient Kavi script of Java,
Indonesia. Nevertheless, the Spanish noticed that Malay natives could read and write
with common scripts in Alibata. Translated as Baybayin in Filipino, Alibata had been
used in the country even before 1567 as reported by Miguel López de Legazpi,
“They [the Visayans] have their letters and characters like those of the Malays, from
whom they learned them” (Scott (2), 1994: 94, 297). While Alibata has seventeen
(17) symbols - 3 vowels and 14 consonants, the LCI is an even more advanced script
in limited use in the country as far back as the year 900 A.D.
The period of Barangay states and thassalocratic (rule of the sea) trade (200AD-
900 AD) saw the movement of various indigenous peoples’ groups across the country
which formed small political units known as a barangay, each headed by a Datu.
Each barangay normally had a population of about 1000 families. Notable barangays
with more than 1000 families are Zubu (Cebu), Butuan, Maktan (Mactan), Irong-Irong
(Iloilo), Bigan (Vigan), and Selurong (Manila). It was during this period that the
indigenous peoples and indigenous cultural communities (IPs/CCs) had a massive
contact not only with people of neighboring barangays or communities but also
from the other Southeast Asian and East Asian nations, making the era known for
inter-island and international trade. It also led to the development of a socio-political
and economic hierarchy with the rise of the Datu or ruling class; the Maharlika or
noblemen; the Timawa or freemen; and the dependent class which is divided into
two, the Aliping Namamahay (Slave) and Aliping Saguiguilid (Serfs).
Added to this are the historical and anthropological accounts on the peopling
of the Philippines such as the waves of migration, which were said to come from
various parts of the Asian mainland and from three great Malayan empires – the
Shri-Visayan, the Madjapahit and the Malayan empires during prehistoric times (Elevazo
and Elevazo, 1995: 10). The ethos of the three great Malayan empires are believed
“to have been influenced by the Hindu and Chinese cultures through contact in the
trading of products and through inter-marriage long before any Europeans or
Americans came to this part of the world” (ibid.). These people highly prized jars as
symbols of wealth throughout South Asia, and later metal, salt and tobacco, and
exchanged them with feathers, rhino horn, hornbill beaks, beeswax, birds nests,
resin, rattan and others. Because of this, the IPs/ICCs in various parts of the
Philippine archipelago had tremendous contacts with traders from China, India and
Arab countries in earliest times. In fact, Arab missionaries came even before 1300
and inhabited Sulu, Tawi-Tawi and other parts of Mindanao (ibid.). They built a
formidable culture base firmly grounded on Islam, thus the Spanish colonizers failed
to subjugate them and impose their religious faith.
In other parts of the country, some barangays were found to be under the de
jure jurisdiction of one of several neighboring empires, among them the Malay Sri
Vijaya, Javanese Majapahit, Brunei, Melaka empires, although de-facto had established
their own independent system of rule. Trading links with Sumatra, Borneo, Thailand,
Java, China, India, Arabia, Japan and the Ryukyu Kingdom flourished and led to
the emergence of a thalassocracy due to international trade through the sea. There
were numerous prosperous centers of trade that emerged between the 7th century
until the invasion of Spain in 1521, particularly in Manila, Pangasinan, Cebu, Iloilo,
Butuan, to name a few. Unfortunately, almost all of these and other evidences of
civilization were destroyed during the Spanish period.
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Filipinos have been taught that these difficult and trying times are the periods
of struggle and liberation of the Filipino people. No amount of resistance against
colonization could prevent the colonizers from imposing and forcing upon us their
systems of education. They inhabited our country and imposed upon the Filipino
people their beliefs, value system, customs and traditions in all aspects of life. Their
policies displayed a hybrid system of education through the amalgamation of local
Philippine culture and their colonial impositions. However, they were faced with
diverse views and struggles of patriotic Filipino leaders. Some unconditionally rejected
and fought the colonizers, including the introduction of their systems of education.
Others, however, simply accepted the foreign education systems through
collaboration. There were also those who struggled for the integration of the
indigenous culture and values into their foreign systems. Thus, this period of education
history was marred by colonial indoctrination as the people were prevented to
question or critically examine the teachings of colonizers, contrary to the present
concept of education that allows critical self-evaluation and skeptical scrutiny of
one’s teachings.
of the Spanish language. This system of education benefited largely the illustrados or
those who came from affluent Filipino families that could afford to send their children
to the limited number of secondary and tertiary schools (colegios) open to selected
non-Spaniards. Although it did not reach most Filipinos, by 1898, enrollment in
schools at all levels was said to have exceeded 200,000 students. In short, most
native Filipinos were denied of such right and only a few who served as acolytes in
church and servants to the Spaniards were lucky enough to receive Spanish education
through the benevolence or forbearance of their masters.
The heroism of Jose Rizal and Andres Bonifacio reflects the two diverse
conditions of Philippine education during the Spanish regime. Unlike Bonifacio who
was known for being a self-educated native or “Indio,” Rizal was educated in the two
prominent Spanish-run universities in the Philippines – Ateneo de Manila and
University of Sto. Tomas – and earned a medical degree in Spain. He hated the
Spanish cruelty to the natives as shown in his novels and essays. However, he wanted
only justice under the rule of law of Spain, and went on to counsel against the
revolution and refused to lend his name to it because he believed it was hopeless.
On the other hand, in spite of his lack of formal education, Bonifacio led the most
successful insurrection ever against Spain as he wanted nothing from the latter. The
success of his rebellion was evidenced by the fact that it was dubbed as the “Philippine
Revolution.” Bonifacio dreamed of one thing for the Filipinos - sovereignty. He wrote
the Katipunan as the guiding document of the first truly Filipino government. He
did not become the president of the first Philippine Republic as Aguinaldo was
voted over him by the rich-dominated Tejeros convention, who believed that his
lowly background made him unfit to lead the revolutionary government, and this
country. Worse, upper class Spanish-educated Aguinaldo pursued the will of the
Spaniards and signed the death warrant of Bonifacio.
Some historians believe that the Katipunan must be proclaimed as the first
Philippine Republic with Andres Bonifacio as the first president. Bonifacio first
introduced the concept of the Philippine nation in Haring Bayang Katagalugan
(“Sovereign Tagalog Nation”) which was replaced by Aguinaldo’s concept of Filipinas
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after his election as President during the Tejeros convention on March 22, 1897
(Guerrero, et al., 1998: 166-167). The Tagalog Republic under the Katipunan
revolutionary government (1896-1897) predated what is now known as the First
Philippine Republic. The term Tagalog, although historically used to refer to an ethnic
group, their language, and script, is not restricted to the Tagalog regions of Luzon,
hence, it is equally embracing as Aguinaldo’s concept of Filipinas consisting of Luzon,
Visayas and Mindanao (comprising the modern Philippines). Guerrero writes that
Bonifacio and the Katipunan already had an all-encompassing view of the Philippine
nation as evidenced by the Kartilla which defines “Tagalog” as “all those born in this
archipelago; therefore, though Visayan, Ilocano, Pampango, etc. they are all Tagalogs”
(Guerrero, 1996: 3-12).
In the final analysis, only few Filipinos took advantage of the Spanish
education system. The Spaniards deprived the native Indios like Bonifacio of their
rights to education as they put up an unconditional resistance or struggle to be free,
or to enjoy freedom in a sovereign nation. The Spaniards were preoccupied with
their colonization efforts through forced political subjugation and evangelization of
Filipinos to assuage their resistance and rebelliousness against the collection of forced
tributes and the enforcement of forced labor, and to ward off protracted rebellions
across the country (ibid., p. 18). Thus, educating the natives was their least priority,
or not at all.
The First Philippine Republic. The revolution period towards the end of
the 19th century was a momentous event in Philippine education history. It ended
the long period of oppression and gave birth to the enjoyment of civil and political
rights and the right to education. Article XXII of the Provisional Constitution written
in Biak-na-Bato contained, among others, a provision on education: “Religious liberty,
the right to association, the freedom of education, the freedom of the press, as well
as freedom in the exercise of professions, arts, trades and industries are established.”
The Malolos Constitution, which superseded the Provisional Constitution of Biak-
na-Bato, clearly mandated the separation of Church and State, and decreed a system
of free and compulsory elementary education. This officially declared the First
Philippine Republic, which was formally established with the proclamation of the
Malolos Constitution on Jan. 21, 1899. The First Republic endured until the capture
and surrender of Aguinaldo to American forces on March 23, 1901, after which it
was effectively dissolved.
The First Philippine Republic was unfortunately short-lived, thus its philosophy
on education failed “to reach full flowering and fruition” (ibid., p. 23). Nevertheless,
it gave opportunities for those Filipino revolutionary heroes to espouse, albeit for a
short time, the true aspirations, visions and values of Filipino education. These
revolutionary heroes struggled for a government ran by Filipinos and protective of
the interest and welfare of the Filipino people and the creation of a sovereign republic.
Their essence of love of country was “so strong as to require even the supreme
sacrifice of one’s life” (ibid.). They wanted a sovereign country founded on its rich
cultural heritage, values and tradition. They envisioned an indigenous right- and
culture-based educational system that every Filipino could be proud of.
The American period was known for the establishment of a highly centralized
public school system by virtue of Act No. 74, which was enacted by the Philippine
Commission in 1901. Regarded as the first educational law under the American
regime, and known as the first “organic school law” of the Philippines, it resurrected
the public primary school system. The Americans patterned the Philippine public
school system after their system of education. The Philippine public schools used
American textbooks and reading materials to teach subjects in reading, writing,
arithmetic, language, gardening, domestic science, American history, and Philippine
history. There were very limited technical education courses for the Filipinos as the
Americans did not want them to be educated beyond what they envisioned them to
be. Vocational education focused on “gardening, carpentry, sewing, lace making, and
almost everything that would ‘civilize’ the ‘uncivilized’ Filipino” (p. 27). In short, the
“Americans took the responsibility of thinking for the Philippines, as did the
Spaniards, and of charting their educational future” (p. 29).
Historically, Spain began colonizing the said islands in 1668. Originally called
Islas de Ladrones (Islands of Thieves), the Spanish renamed them in 1688 in honor of
Queen Mariana of Spain. Spain sold the Marianas, as well as the Carolines and
Marshalls, to Germany in 1899 to raise money after the Spanish-American War. In
1914, during World War I, Japan claimed jurisdiction over all these islands after
entering the war on the side of the Allied Powers; it retained them officially under a
1919 mandate of the League of Nations. The US gained control of the islands through
military victories in 1944, and established a military government following World
War II. Thereafter, the islands were administered by the US as part of the United
Nations Trust Territory of the Pacific Islands; thus, defense and foreign affairs
remained the responsibility of the US. CNMI decided not to seek independence, but
instead negotiated for territorial status in early 1970s. A covenant to establish a
commonwealth in political union with the U.S. was approved in 1975. A new
government and its constitution went into effect in 1978. Since then, CNMI has
been regarded as a commonwealth in political union with the US without
representation in the U.S. Senate, but it is represented in the US House of
Representatives by a delegate (beginning January 2009 for the CNMI), who may
vote in committee but not on the House floor.
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Be that as it may, the 1935 Constitution provided the framework and philosophy
for public education system in the Philippines. Section 5, Article XIV provides that:
(1) to simplify, shorten, and render more practical and economical both
the primary and intermediate courses of instruction so as to place the
same within the reach of the largest possible number of school
children;
The Commonwealth period which lasted for about seven years after it was
inaugurated in 1935 was interrupted by the Japanese occupation. It thus wrote down
an important milestone in the legal and philosophical history of Philippine education
because education during this period was made available equally to the rich and
poor, at least in principle.
Japanese Colonial Period. Japan invaded the Philippines in 1942. The war-
time educational objectives and philosophy of the Japanese Imperial Forces were
pronounced on February 17, 1942 by its Commander-in-Chief, thus:
As a whole, during this period (1941-1945), the Filipinos were taught how to
be resilient in the face of adversities. While Filipino teachers were forced to teach
war ideology and a Japanese brand of morality against the West, we saw the fierce
resistance of the people in the countryside against the cruelty of the Japanese. With
the lessons learned in the previous wars, the efforts of the Japanese to re-educate
the Filipinos were confronted with contrived avoidance and circumvention in the
process of implementation, if not actual physical combat in the countryside. The
Japanese did not actually make a remarkable dent to the already deeply embedded
Western-imposed educational system in the Philippines.
One important piece of legislation during this period was R.A. No. 896,
otherwise known as the Elementary Education Act of 1953. It made compulsory the
enrollment of a child the next school year following his/her seventh birthday and
the requirement for him/her to remain in school until he completed elementary
education, subject to the same exceptions provided under Commonwealth Act No.
586 and the said Act. It also restored Grade VII, provided that the pupils who were
in Grade VI at the time of its implementation were no longer required to complete
the seventh grade in order to be eligible for first year high school. Laws and policies
on education were basically guided by Article XIV, Section 5 of the 1935
Constitution, thus: “All schools shall aim to develop moral character, personal
discipline, civic conscience, and vocational efficiency, and to teach the duties of
citizenship.” This constitutional proviso served as the essential principle of education
during the Philippine Commonwealth.
Notably, the right to education has been universally recognized since the
Universal Declaration of Human Rights in 1948. Article 26 of the Declaration
proclaims that: ‘Everyone has the right to education. Education shall be free, at least
in the elementary and fundamental stages. Elementary education shall be
compulsory…education shall be directed to the full development of human personality
and to the strengthening of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among racial or religious
groups…’ This right has since been enshrined in various international conventions,
regional treatises, national constitutions, statutes, and development plans of various
countries of the world.
For instance, recognizing the right of education as a basic human right, Article
2 of the first Protocol to the European Convention on Human Rights (1952) obliges
all signatory parties to guarantee the right to education. The United Nations’
International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
guarantees this right under its Article 13. The Convention on the Elimination of All
Forms Of Discrimination Against Women (CEDAW, 1979) and more recently, the
Convention On The Rights of The Child (CRC, 1989) also include the right to
education. The Philippines is a signatory to the foregoing United Nations’ conventions.
However, the right to basic education has been formally recognized as a human right
in the Philippines since 1935, with the enactment of the 1935 Constitution. The
right to basic education as a human right means that basic education is something
that the Filipino people are entitled to, which they can claim without having to pay
for its access and the government is obliged to provide it for free. This constitutional
policy has been pursued from post-liberation to the present.
As the basic and fundamental law of the Philippine education, the 1935
Constitution, which was promulgated after the inauguration of the Philippine
Commonwealth, was re-activated after the Japanese occupation. It governed our
educational system for more than three decades. It was replaced by the 1973
Constitution as an offshoot of the declaration of Martial Law. President Marcos
introduced a model of education based on the vision of a new society. He believed
that the 1935 Constitution had “vestiges of colonialism” and was already irrelevant
to the new society. Contrary to the colonial nature of the previous constitution, the
1973 Constitution was a product of the dictatorial rule.
Article XV, Section 8 of the 1973 Constitution defined and set the
constitutional framework of the Philippine education system after martial rule, thus:
(3) The study of the Constitution shall be part of the curricula in all
schools.
(6) The State shall provide citizenship and vocational training to adult
citizens and out-of-school youth, and create and maintain scholarships
for poor and deserving students.
In line with the said constitutional proviso, B.P. Blg. 232, also known as the
Education Act of 1982, instituted an integrated system of education covering both
formal and non-formal education at all levels. Section 29 of the Act mandated to
upgrade education institutions’ standards to achieve quality education, through
voluntary accreditation for schools, colleges, and universities. The voluntary
accreditation of schools became very controversial when the CHED established the
Institutional Quality Assurance Monitoring and Evaluation (IQAME) in 2005 for
regulation of the existing accreditations of private schools. Because of this, former
President Arroyo issued E.O. No. 705, on January 2, 2008, as amended by E.O. No.
705, which was issued on April 10, 2008. E.O. No. 705 subjected private schools not
accredited by the Philippine Accrediting Association of Schools, Colleges and
Universities (PAASCU) to the Institutional Quality Assurance Monitoring and
Evaluation (IQAME) process. Sec. 1 of E.O. No. 705 was amended as follows:
The foregoing executive issuances are the very legal bases of CHED’s regulation
of the accreditation of private schools. President Arroyo issued said executive
issuances pursuant to her powers under the Constitution and Executive Order No.
292 (the Administrative Code of 1987). The president thus validly delegated her
power to CHED by directing it to formulate common policies and standards for
existing accrediting agencies to enhance and improve the quality of education in the
country.
232 (Education Act of 1982) and its implementing rules and Republic Act No. 7722
(CHED Act) did not give CHED the power to issue rules and regulations on
accreditation. To make rules and regulations issued by administrative agencies valid,
he enumerated three conditions that must be satisfied: “(1) there is a law delegating
the rule-making power; (2) the delegating law contains standards for the executive
agency to follow; (3) the rules stay within the standards set by the delegating law.”
The CHED has been subsidizing the accrediting agencies in the accreditation
of private schools, which have to pay certain fees to the accrediting bodies for their
accreditation in accordance with law. With this and the said executive order mandating
the accrediting agencies to conform with a set of common standards formulated by
the Coordinating Council on Accreditation (CCA) of CHED, it is just proper as
part of the sovereign function of the CHED to regulate higher education, including
its accreditation, notwithstanding the fact that the law (B.P. Blg. 232) states that
accreditation is voluntary, thus:
No less than the Supreme Court ruled that the administration and regulation
of education is a sovereign function of the government to be exercised for the benefit
of the public. Citing Laurel v. Desierto (430 Phil. 658; G.R. No. 145368, April 12,
2002), it defined public office as “the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at the pleasure
of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public”
(Serana vs. Sandiganbayan, G.R. No. 162059, January 22, 2008). It also said that
“Delegation of sovereign functions is essential in public office.” It ruled in the Serana
case that:
Although the Philippine education system under the Marcos regime was
subjected to intense opposition and protests from various sectors, particularly when
it introduced the ideology for the new society in the basic education level through
textbooks and other instructional materials, it produced the Education Act of 1982,
a landmark piece of legislation that provided for the development of education in
the country. President Marcos was also known for the passage of P.D. No. 1006,
declaring teachers as professionals and teaching as a profession. This decree required
all teachers to pass the Professional Board Examination for Teachers (PBET) before
they were allowed to teach and provided for the creation of National Board for
Teachers tasked to prepare and administer the PBET. Included in this was the passage
of the Magna Carta for Public School Teachers that decreed the improvement of the
socio-economic welfare of educators and their protection.
In spite of this, the Filipino people found the imposition of the ideology of the
new society into the educational system dictatorial and oppressive and they dramatized
their protest on the streets leading to the 1986 EDSA revolution. With this, the
ideology of the new society which President Marcos envisioned for the Filipino people
to become responsible, productive and patriotic citizenry came to an end.
This period covers the period from the time President Corazon C. Aquino
ascended to power up to the present. After President Aquino assumed the presidency,
the 1987 Constitution was ratified on 2 February 1987. Section 3, Article XIV of
VOLUME 35 NUMBER 1 (AUGUST 2010) 159
Rustico T. De Belen
the 1987 Constitution contains the ten elemental aims of education in the Philippines.
Prior thereto, President Aquino issued Executive Order No. 117, reorganizing the
Ministry of Education, Culture and Sports, in the process renaming the Bureau of
Sports Development as the Bureau of Physical Education and School Sports, and
the Bureau of Continuing Education as the Bureau of Non-Formal Education. The
structure of DECS as embodied in EO No. 117 remained practically unchanged until
1994.
Evidently, education plays a vital role to protect human rights, promote human
dignity, and attain human progress. It is also an important instrument of socio-
economic growth and sustainable development. This is precisely the main concern
of Philippine education under the 1987 Constitution. Its focus is on the learner as
the means and the end of development. It aims to address not only individual needs
but also community needs. The duties of all educational institutions in relation to
this mandate are clearly stated in Art XI, Sec. 3 (par. 2) of the 1987 Constitution:
“They shall inculcate patriotism and nationalism, foster love of humanity, respect
for human rights, appreciation of the role of national heroes in the historical
development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and technological
knowledge, and promote vocational efficiency.” The complementary roles of public
and private educational institutions are thus recognized in the pursuit of the above
objectives.
The 1987 Constitution also envisions education as a tool for attaining the
goals of social justice, unity, freedom, and prosperity. It wants to make education a
tool of development as evidenced by its various provisions restating its commitment
to national development. Art. II, Section 17 of the 1987 Constitution states that
“The State shall give priority to education, science and technology, arts, culture, and
sports to foster patriotism and nationalism, accelerate social progress, and promote
total human liberation and development. It seeks to make education a tool of equality
and social justice making it free and accessible.” This shows that the 1987 Constitution
regards education as a tool to achieve its aspiration to create a society of responsible,
productive, self-fulfilling and patriotic citizens. It also intends to use education as an
instrument of peace through the equalization of the socio-economic forces and the
prevention of social division among the people.
In fact, free public education is an attempt to narrow the gap between the rich
and the poor. It has been enhanced with the enactment of Republic Act No. 6655 on
26 May 1988, providing for the Free Public Secondary Education Act of 1988. It
specifically mandated free public secondary education commencing in the school
year 1988-1989. It was followed by the passage of Republic Act No. 7323 on 03
February 1992, which provided that students aged 15 to 25 may be employed during
summer or Christmas vacation with a salary not lower than the minimum wage.
Sixty percent (60%) of the wage is to be paid by the employer and 40% by the
government. The government has implemented the trifocal system of education with
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the firm belief that it will improve universal access to quality education and the poor
public governance in the Philippine educational system.
The trifocal system of education in the Philippines had its impetus on the
Congressional Commission on Education (EDCOM) dated December 28, 1991,
entitled “Making Philippine Education Work: An Agenda for Reform,” specifically
recommending the division of DECS into three agencies because of its findings on
the declining state of the Philippine education system brought about by poor public
governance, among other reasons. It found out that the quality of Philippine education
is declining continuously as evidenced by the following observations:
(1) Our elementary and high schools are failing to teach the competence
the average citizen needs to become responsible, productive and self-
fulfilling;
(2) Colleges and technical/vocational schools are not producing the
manpower we need to develop our economy; and
(3) Graduate education is mediocre. It does not generate the research-
based knowledge we need to create more jobs and to raise the value of
production.
According to the EDCOM Report, the two main reasons for the decline of
Philippine education are (1) that we are not simply investing enough in our educational
system, and (2) that our education establishments are poorly managed. The Philippines
was then beset with restraining trends such as low performance of students, short
investment in education, lack of policy direction in education, poor public and private
education governance, etc. In line with this, the trifocal system of education was put
in place through various legislations and policies.
First, on May 18, 1994, Congress passed Republic Act No. 7722, the Higher
Education Act of 1994, creating the Commission on Higher Education (CHED),
which assumed the functions of the Bureau of Higher Education and the supervision
of tertiary degree programs. Second, on August 25, 1994, Congress passed Republic
Act No. 7796, the Technical Education and Skills Development Act of 1994, which
created the Technical Education and Skills Development Authority (TESDA), which
absorbed the Bureau of Technical-Vocational Education plus the National Manpower
and Youth Council. TESDA supervises non-degree technical-vocational programs.
DECS retained responsibility for all elementary and secondary education. Third, in
August 2001, Congress passed Republic Act No. 9155, otherwise called the
Governance of Basic Education Act, which renamed the Department of Education,
Culture and Sports (DECS) as the Department of Education (DepEd) and redefined
the role of field offices (regional offices, division offices, district offices, and schools).
RA 9155 provides the overall framework for (1) school head empowerment by
strengthening their leadership roles and (2) school-based management within the
context of transparency and local accountability. The goal of basic education is to
provide the school-age population and young adults with skills, knowledge, and values
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Rustico T. De Belen
Thus, the Philippine education system has been trifocalized since 1994,
with the DECS, TESDA and CHED respectively administering the basic
education, technical and vocational education and training (TVET), and higher
education (HE).
First reason why our educational system has not achieved what it
must is the length of basic education, which is only ten years compared to
the 12-year international standard; other 9 countries in ASEAN region
have at least 12 years of basic education. The Philippines is thus the only
country in the ASEAN region that has a 10-year basic education. This
will surely affect our professionals for it would be very difficult for them
to find jobs abroad because of the lacking required number of years in
education. Chairman Angeles thus suggested that we have “to devote the
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Revisiting the Philippine Educational System for Everyone’s Reflection
graduation because their competence and skills do not match the industries’
manpower requirements. Chairman Angeles noted that “wanting is the
communication skills needed in the business processing and outsourcing
(BPO) industry.” He also said that “the graduates’ proficiency in English
and Math as well as skills in the use/application of the latest technologies
are quite inadequate, if not totally lacking.”
On top of this, the 2010 Education for All report states that “Education
indicators for the Philippines are below what might be expected for a country at its
income level and that extreme economic inequalities fuel education inequalities by
pushing many children out of school and into employment.” With those alarming
issues and concerns, it is time for the government to take decisive actions. The focus
of the government to allocate more funds to TESDA, with more than P3M budget
compared to CHED budget of about P1.5M (P1,587,096,000.00 for FY 2008, to be
exact) may be misplaced. We cannot be a country of voc-tech people because we need
to give opportunity for these people to improve their competence and skills and
advance their career. We need to make up for the two-year deficit in basic education.
And we need to harmonize our policies in post-secondary education to make it
effective, cost-efficient and sustainable.
It is true that it is very expensive for the government to add two more years
for Philippine basic education to make it at par with the 12-year international
standard. This issue has to be addressed in the post-secondary education, if not in
164 IBP JOURNAL
Revisiting the Philippine Educational System for Everyone’s Reflection
the basic education sector. The 2-year deficiency in basic education can be corrected
by adjusting the post-secondary education to prepare high school graduates for college
work. Specifically, one suggestion is to add another two years as preparatory course
for college education, also called the pre-college bridging program. The public will
surely oppose this because this means additional expenses for them, and more,
suspect that this is another scheme for private education institutions to profit more.
We must be reminded that education teaches us that change is inevitable. In the
process, it calls for critical evaluation and skeptical scrutiny of any change in education
policy.
In the final analysis, with the lessons learned from the trifocal system of
education, this is the time to correct it to promote quality and excellence, and improve
access to education, and address the manpower needs of the country in a more
effective, cost-efficient and sustainable manner. This can be done by instituting a
dual system of education, with DepEd to maintain its supervision on basic education
consisting of two stages, i.e., elementary education and secondary education, and a
higher education department to assume jurisdiction over post-secondary education
consisting of two tracks, i.e., TVET tract and HE track. This proposed system of
education could ensure the successful completion of education from basic to higher
education, enabling every citizen to get what they truly deserve – accessible, affordable
and acceptable quality education.
VOLUME 35 NUMBER 1 (AUGUST 2010) 165
Rustico T. De Belen
References
Scott, William Henry (1). Prehispanic Source Materials for the Study of
Philippine History. Manila: University of Santo Tomas Press, 1968.
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