F.

Treaties and International Agreement

G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN
PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in
his capacity as Minister Of Public Works, Transportation and Communications; and HON:
BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor
Amado D. Aquino for respondents.

FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due
process and, insofar as the rules and regulations for its implementation are concerned, for
transgressing the fundamental principle of non- delegation of legislative power. The Letter of
Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being arbitrary
and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land
Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio,
Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of
Public Highways; were to answer. That they did in a pleading submitted by Solicitor General Estelito
P. Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that the imputation of
a constitutional infirmity is devoid of justification The Letter of Instruction on is a valid police power
measure. Nor could the implementing rules and regulations issued by respondent Edu be considered
as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor vehicles
along streets or highways without any appropriate early warning device to signal approaching
motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been
recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road
Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna
Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the
enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I,
Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and
highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users
or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early
warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at
least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or
disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways
or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned
herein to be installed at least four meters away to the front and rear of the motor vehicle staged,

disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular
Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor
vehicles, except motorcycles and trailers, charging for each piece not more than 15 % of the
acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively
implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are
necessary or appropriate to carry into effect then instruction. 3 Thereafter, on November 15, 1976, it
was amended by Letter of Instruction No. 479 in this wise. "Paragraph 3 of Letter of Instruction No.
229 is hereby amended to read as follows: 3. The Land transportation Commissioner shall require
every motor vehicle owner to procure from any and present at the registration of his vehicle, one pair
of a reflectorized early warning device, as d bed of any brand or make chosen by mid motor vehicle .
The Land Transportation Commissioner shall also promulgate such rule and regulations as are
appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu,
the implementing rules and regulations on December 10, 1976. 5 They were not enforced as
President Marcos on January 25, 1977, ordered a six-month period of suspension insofar as the
installation of early warning device as a pre-registration requirement for motor vehicle was
concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 the lifting of such suspension and
directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until
August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In
pursuance of Letter of Instruction No. 716, dated June 30, 1978, the implementation of Letter of
Instruction No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning
Devices (EWD) on motor vehicle, the following rules and regulations are hereby issued: 1. LTC
Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the
device may come from whatever source and that it shall have substantially complied with the EWD
specifications contained in Section 2 of said administrative order; 2. In order to insure that every
motor vehicle , except motorcycles, is equipped with the device, a pair of serially numbered stickers,
to be issued free of charge by this Commission, shall be attached to each EWD. The EWD. serial
number shall be indicated on the registration certificate and official receipt of payment of current
registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict
herewith are hereby superseded, This Order shall take effect immediately. 9 It was for immediate
implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and
Communications. 10
Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already
properly equipped when it came out from the assembly lines with blinking lights fore and aft, which
could very well serve as an early warning device in case of the emergencies mentioned in Letter of
Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative
Order No. 1 issued by the land transportation Commission," 11 alleged that said Letter of Instruction
No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] * * *: " For
him they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to
the precepts of our compassionate New Society." 12 He contended that they are "infected with
arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided,
onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant
millionaires at the expense of car owners who are compelled to buy a set of the so-called early
warning device at the rate of P 56.00 to P72.00 per set." 14are unlawful and unconstitutional and
contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on
the part of the motorists who could very well provide a practical alternative road safety device, or a
better substitute to the specified set of EWD's." 15 He therefore prayed for a judgment both the
assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a
restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C.
Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised

and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or mandatory
injunction, the Court Resolved to (require) the respondents to file an answer thereto within ton (10)
days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a
[temporary restraining order] effective as of this date and continuing until otherwise ordered by this
Court. 16
Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations
and stating that they lacked knowledge or information sufficient to form a belief as to petitioner
owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they lacked
knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
Car, 17 they specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2,
3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions
Nos. 479 and 716 as well as Land transportation Commission Administrative Order No. 1 and its
Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal
protection of law and undue delegation of police power, and that the same are likewise oppressive,
arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal the truth being that said
allegations are without legal and factual basis and for the reasons alleged in the Special and
Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical
recital of his litany of grievances and merely invoked the sacramental phrases of constitutional
litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of
the police power and implementing rules and regulations of respondent Edu not susceptible to the
charge that there was unlawful delegation of legislative power, there was in the portion captioned
Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative
decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v.
Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the
United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and
which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm
and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter
of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny.
To repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As
noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is
conceded by petitioner and is the main reliance of respondents. It is the submission of the former,
however, that while embraced in such a category, it has offended against the due process and equal
protection safeguards of the Constitution, although the latter point was mentioned only in passing.
The broad and expansive scope of the police power which was originally Identified by Chief Justice
Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers
of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v.
Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into
force, Calalang v. Williams, Identified police power with state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general welfare. Persons and
property could thus 'be subjected to all kinds of restraints and burdens in order to we the general
comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v.
Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a preCommonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit
all things hurtful to the comfort, safety and welfare of society. In that sense it could be hardly

distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the
above sense the greatest and most powerful at. tribute of government. It is, to quote Justice Malcolm
anew, 'the most essential, insistent, and at least table powers, I extending as Justice Holmes aptly
pointed out 'to all the great public needs.' Its scope, ever-expanding to meet the exigencies of the
times, even to anticipate the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuring the greatest benefits. In the
language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in
the present with the well-being of the nation. What is critical or urgent changes with the time.' The
police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to communal
peace, safety, good order, and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the
particular police power measure challenged was clearly intended to promote public safety. It would be
a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character.
None has been called to our attention, an indication of its being non-existent. The latest decision in
point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the
same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which
was: "To promote safe transit upon, and. avoid obstruction on roads and streets designated as
national roads * * *. 26 As a matter of fact, the first law sought to be nullified after the effectivity of the
1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise
prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules
and regulations becomes even more apparent considering his failure to lay the necessary factual
foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt
from a decision of Justice Branders of the American Supreme Court, quoted in the opinion: "The
statute here questioned deals with a subject clearly within the scope of the police power. We are
asked to declare it void on the ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of
validity. As was pointed out in his Answer "The President certainly had in his possession the
necessary statistical information and data at the time he issued said letter of instructions, and such
factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are
not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per
cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p. 12
of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by
this Honorable Court: Further: "It admits of no doubt therefore that there being a presumption of
validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on
its face, which is not the case here"' * * *. But even as g the verity of petitioner's statistics, is that not
reason enough to require the installation of early warning devices to prevent another 390 rear-end
collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result
from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of
such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department.
To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural

claims that exceeded even the broadest permissible limits of a pleader's well known penchant for
exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction
was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is
not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with
1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights inside
motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor vehicles," or 4)
"well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a
distance of at least 400 meters, any motorist from this country or from any part of the world, who sees
a reflectorized rectangular early seaming device installed on the roads, highways or expressways, will
conclude, without thinking, that somewhere along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or
endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other
built in warning devices or the petroleum lamps will not immediately get adequate advance warning
because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will
thus increase, rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of
the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as amended, or
in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners concerned like
petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring
or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity,
motor vehicle owners can even personally make or produce this early warning device so long as the
same substantially conforms with the specifications laid down in said letter of instruction and
administrative order. Accordingly the early warning device requirement can neither be oppressive,
onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said
devices 'instant millionaires at the expense of car owners' as petitioner so sweepingly concludes * * *.
Petitioner's fear that with the early warning device requirement 'a more subtle racket may be
committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that
unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an
unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the
challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional
defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack
of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say
negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if
that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of
Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of legislation.' As
expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it
within the bounds of propriety and common sense. That is primarily and exclusively a legislative
concern.' There can be no possible objection then to the observation of Justice Montemayor. 'As long
as laws do not violate any Constitutional provision, the Courts merely interpret and apply them
regardless of whether or not they are wise or salutary. For they, according to Justice Labrador, 'are
not supposed to override legitimate policy and * * * never inquire into the wisdom of the law.' It is thus
settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the

main wisely allocated the respective authority of each department and confined its jurisdiction to such
a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the
rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants
submit their controversy precisely to maintain unimpaired the supremacy of legal norms and
prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of legislative power is
equally without any support well-settled legal doctrines. Had petitioner taken the trouble to acquaint
himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make
such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light on the matter:
"To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least
that the legislature itself determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel A standard thus defines legislative
policy, marks its maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative office designated
may in pursuance of the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation objection is easily met.
The standard though does not have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law clearly, the legislative objective is
public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads.'
This is to adhere to the recognition given expression by Justice Laurel in a decision announced not
too long after the Constitution came into force and effect that the principle of non-delegation "has
been made to adapt itself to the complexities of modern governments, giving rise to the adoption,
within certain limits, of the principle of "subordinate legislation" not only in the United States and
England but in practically all modern governments.' He continued: 'Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature and toward the approval of the practice by the courts.'
Consistency with the conceptual approach requires the reminder that what is delegated is authority
non-legislative in character, the completeness of the statute when it leaves the hands of Congress
being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of
Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which
was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local
legislation for the installation of road safety signs and devices; * * * " 35 It cannot be disputed then that
this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * * *
adopts the generally accepted principles of international law as part of the law of the land * * *." 36 The
1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for
this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even
elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and categorical
why such a casual observation should be taken seriously. In no case is there a more appropriate

occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern
Broadcasting Co., 37 namely, "that the constitutionality of a law wig not be considered unless the point
is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic
formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will
crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and MelencioHerrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.

BAYAN MUNA, as represented by

Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, and Rep. LIZA L. MAZA,
Petitioner,

G.R. No. 159618

Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

- versus -

ALBERTO ROMULO, in his capacity

as Executive Secretary, and BLAS F.
OPLE, in his capacity as Secretary of
Foreign Affairs,
Respondents.

Promulgated:

February 1, 2011
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case
This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP)
and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in
his capacity as then Executive Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute [3] establishing the
International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most

serious crimes of international concern x x x and shall be complementary to the national criminal
jurisdictions.[4] The serious crimes adverted to coverthose considered grave under international law,
such as genocide, crimes against humanity, war crimes, and crimes of aggression. [5]
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the signatory
states.[6] As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence process. The Philippines is not among the
92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to
the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03 [7] dated May 13, 2003 (E/N BFO-028-03, hereinafter),
the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals
embodied under the US Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and defines as persons of the
RP and US from frivolous and harassment suits that might be brought against them in international
tribunals.[8] It is reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by
and between the US and 33 other countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are current or former Government
officials, employees (including contractors), or military personnel or nationals of one
Party.
2. Persons of one Party present in the territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for
any purpose, unless such tribunal has been established by the UN Security
Council, or
(b) be surrendered or transferred by any means to any other entity or third
country, or expelled to a third country, for the purpose of surrender to or
transfer to any international tribunal, unless such tribunal has been
established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the
Philippines to a third country, the [US] will not agree to the surrender or transfer of that

person by the third country to any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express consent of the Government
of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the
[USA] to a third country, the [GRP] will not agree to the surrender or transfer of that
person by the third country to any international tribunal, unless such tribunal has been
established by the UN Security Council, absent the express consent of the Government
of the [US].
5. This Agreement shall remain in force until one year after the date on which one
party notifies the other of its intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act occurring, or any allegation
arising, before the effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the nonsurrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally binding agreement under international law; and
that, under US law, the said agreement did not require the advice and consent of the US Senate. [10]
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding
and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared
as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION
FOR
CONCLUDING
THE RP-US
NON
SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF
THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE
SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused
their discretion when they capriciously abandoned, waived and relinquished our
only legitimate recourse through the Rome Statute of the [ICC] to prosecute and
try persons as defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.

B.

Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the
principle of good faith to refrain from doing all acts which would substantially
impair the value of the undertaking as signed.

C.

Whether the x x x Agreement constitutes an act which defeats the object and
purpose of the Rome Statute of the International Criminal Court and contravenes
the obligation of good faith inherent in the signature of the President affixed on
the Rome Statute of the International Criminal Court, and if so whether the x x
x Agreementis void and unenforceable on this ground.

D.

Whether the RP-US Non-Surrender Agreement is void and unenforceable for

grave abuse of discretion amounting to lack or excess of jurisdiction in
connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE
AT VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW.
III. WHETHER
THE
x
x
x AGREEMENT IS
VALID,
BINDING
AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3)
OF ALL THE MEMBERS OF THE SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has not
been submitted to the Senate for concurrence, contravenes and undermines the Rome Statute and
other treaties. But because respondents expectedly raised it, we shall first tackle the issue of
petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount importance
that justifies its standing. Cited in this regard is what is usually referred to as the emergency powers
cases,[12] in which ordinary citizens and taxpayers were accorded the personality to question the
constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given question. [13] Specifically, it
is a partys personal and substantial interest in a case where he has sustained or will sustain direct
injury as a result[14] of the act being challenged, and calls for more than just a generalized grievance.

[15]

The term interest refers to material interest, as distinguished from one that is merely incidental.
[16]
The rationale for requiring a party who challenges the validity of a law or international agreement to
allege such a personal stake in the outcome of the controversy is to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[17]
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the operation of a
law or any other government act, but by concerned citizens, taxpayers, or voters who actually sue in
the public interest.[18] Consequently, in a catena of cases,[19] this Court has invariably adopted a liberal
stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as concerned
citizens raising issues of transcendental importance, both for the Republic and the citizenry as a
whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.[20] expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators
when specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to show, not
only that the law or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.[21]

In the case at bar, petitioners representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their assertions questioning
the Agreement are made of a public right, i.e., to ascertain that theAgreement did not go against
established national policies, practices, and obligations bearing on the States obligation to the
community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement of locus
standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency
powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental importance, we wrote
again in Bayan v. Zamora,[24] The Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave
abuse of discretion brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government, [25] we cannot but resolve head on the issues raised
before us. Indeed, where an action of any branch of government is seriously alleged to have infringed
the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the
duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the
propriety of the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being
that E/N BFO-028-03 cannot be a valid medium for concluding theAgreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international jurisprudence as part of the law of the land
and adheres to the policy of peace, cooperation, and amity with all nations. [26] An exchange of notes
falls into the category of inter-governmental agreements, [27] which is an internationally accepted form
of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines
the term as follows:
An exchange of notes is a record of a routine agreement, that has many
similarities with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or, sometimes,
to avoid the process of legislative approval.[28]

In another perspective, the terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive agreement that

becomes binding through executive action. [29] On the other hand, executive agreements concluded by
the President sometimes take the form of exchange of notes and at other times that of more formal
documents denominated agreements or protocols. [30] As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements or exchange of
notes or otherwise begin, may sometimes be difficult of ready ascertainment. [31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be
boundis a recognized mode of concluding a legally binding international written contract among
nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation.[32] International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are similar to treaties,
except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.[33]
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned, [34] as long as the negotiating
functionaries have remained within their powers. [35] Neither, on the domestic sphere, can one be held
valid if it violates the Constitution. [36] Authorities are, however, agreed that one is distinct from another
for accepted reasons apart from the concurrence-requirement aspect. [37] As has been observed by US
constitutional scholars, a treaty has greater dignity than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;[38] a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
the nature of a treaty; hence, it must be duly concurred in by the Senate.Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: [I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any
of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be
covered by an executive agreement, such as commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant,[41] holding that an executive agreement through an exchange of notes cannot be used
to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is the parties
intent and desire to craft an international agreement in the form they so wish to further their
respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the
domain of international law wider, as to include such subjects as human rights, the environment, and
the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to
2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. [43] Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of
which the international agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of
executive agreements as such concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade-agreement act, have been
negotiated with foreign governments. x x x They cover such subjects as the inspection
of vessels, navigation dues, income tax on shipping profits, the admission of civil air
craft, custom matters and commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized [44] or a treatyimplementing executive agreement,[45] which necessarily would cover the same matters subject of the
underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution [46]when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of
the Senate by a vote defined therein to complete the ratification process.
Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different
factual milieus. There, the Court held that an executive agreement cannot be used to amend a duly
ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not
require the concurrence of the Senate for its ratification may not be used to amend a treaty that,
under the Constitution, is the product of the ratifying acts of the Executive and the Senate. The
presence of a treaty, purportedly being subject to amendment by an executive agreement, does not
obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by at least
two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated
in Bayan,[49] given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage.
From the earliest days of our history, we have entered executive agreements covering
such subjects as commercial and consular relations, most favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously questioned by our
courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the establishment of the
ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the
effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for the
purpose of providing individuals or groups of individuals with immunity from the jurisdiction of the ICC;
and such grant of immunity through non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that state parties with non-surrender

agreements are prevented from meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily by states,
but as a last resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes
the ICC from exercising its complementary function of acting when a state is unable to or unwilling to
do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from performing
acts that substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has an immoral purpose or is
otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it
differ from, the Rome Statute. Far from going against each other, one complements the other. As a
matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out
by respondents and admitted by petitioners, the jurisdiction of the ICC is to be complementary to
national criminal jurisdictions [of the signatory states]. [54] Art. 1 of the Rome Statute pertinently
provides:
Article 1
The Court
An International Crimininal Court (the Court) is hereby established. It x x x shall
have the power to exercise its jurisdiction over persons for the most serious crimes
of international concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes. This
provision indicates that primary jurisdiction over the so-called international crimes rests, at the first
instance, with the state where the crime was committed; secondarily, with the ICC in appropriate
situations contemplated under Art. 17, par. 1 [55] of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the
ICC. As far as relevant, the provision states that no person who has been tried by another court for

conduct x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal]
Court with respect to the same conduct x x x.
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the ICC;
or the idea of the Agreement substantially impairing the value of the RPs undertaking under the
Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory states are unwilling or
unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention [57] to refrain from performing any act tending to impair the
value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of the Statute, let alone
defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered
into. We refer to Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would
require the requested State to act inconsistently with its obligations under
international agreements pursuant to which the consent of a sending State is
required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the
surrender.

Moreover, under international law, there is a considerable difference between a State-Party

and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refrain from acts which would defeat the object and purpose of a treaty; [58] whereas a
State-Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain
from acts which would defeat the object and purpose of the Rome Statute. Any argument obliging
the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90,
must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a
State not Party to this Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the request for surrender from the
Court. x x x In applying the provision, certain undisputed facts should be pointed out: first, the US is
neither a State-Party nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international agreements entered into between States, even when one of
the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in
the Philippines. Formulating petitioners argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance
of the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as
explained above, it is always the responsibility and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of
the ICC. Thus, the Philippines may decide to try persons of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt not to exercise its criminal
jurisdiction over its erring citizens or over US persons committing high crimes in the country and defer
to the secondary criminal jurisdiction of the ICC over them. As to persons of the US whom the
Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise
either its national criminal jurisdiction over the person concerned or to give its consent to the referral

of the matter to the ICC for trial. In the same breath, the US must extend the same privilege to
the Philippines with respect to persons of the RP committing high crimes within US territorial
jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines agreeing
to undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdictionto
the extent agreed uponto subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote inNicolas v. Romulo[59]a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis
apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to longrecognized subjects of such immunity like Heads of State, diplomats and members of
the armed forces contingents of a foreign State allowed to enter another States territory.
xxx
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost every
time a state enters into an international agreement, it voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It
even adheres, as earlier stated, to the policy of cooperation and amity with all nations. [60]
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this partial
surrender may be the greater benefits derived from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international law as part of the law of the
land, a portion of sovereignty may be waived without violating the Constitution. [61] Such waiver does
not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. [62]
Agreement Not Immoral/Not at Variance
with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of international
law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of
humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x. [63]

The above argument is a kind of recycling of petitioners earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty obligations under the Rome Statute, contrary to international
law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement,
as aptly described by the Solicitor General, is an assertion by the Philippinesof its desire to try and
punish crimes under its national law. x x x The agreement is a recognition of the primacy and
competence of the countrys judiciary to try offenses under its national criminal laws and dispense
justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in thePhilippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met. For perspective, what the Agreement contextually
prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without
the consent of the other party, which may desire to prosecute the crime under its existing laws. With
the view we take of things, there is nothing immoral or violative of international law concepts in the act
of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an
offense considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in
the Agreement. And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner, the
same having been discussed at length earlier on. As to the second portion, We wish to state
that petitioner virtually faults the President for performing, through respondents, a task conferred the
President by the Constitutionthe power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. [65] The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate cases,
to the required concurrence votes of the Senate.But as earlier indicated, executive agreements may
be validly entered into without such concurrence. As the President wields vast powers and influence,
her conduct in the external affairs of the nation is, as Bayan would put it, executive altogether. The

right of the President to enter into or ratify binding executive agreements has been confirmed by long
practice.[66]
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the Presidentby
ratifying, thru her deputies, the non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this petition
was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
Secretary.[67] As the Court emphasized in said case, the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the concurrence of the Senate, whose role relative to the
ratification of a treaty is limited merely to concurring in or withholding the ratification. And concomitant
with this treaty-making power of the President is his or her prerogative to refuse to submit a treaty to
the Senate; or having secured the latters consent to the ratification of the treaty, refuse to ratify it.
[68]
This prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached
upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts required to complete the treaty
process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof,
provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender or extradite
suspected or accused persons in thePhilippines to the appropriate international
court, if any, or to another State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the States
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against
humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that the

Philippine is required to surrender to the proper international tribunal those persons accused of the
grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the
accused to the proper international tribunal; or (2) surrender the accused to another State if such
surrender is pursuant to the applicable extradition laws and treaties. But the Philippines may exercise
these options only in cases where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime; otherwise, the Philippines must prosecute
the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such USnational to the international
tribunal if it decides not to prosecute such US national here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation
of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines can exercise
such option, requires an amendatory law. In line with this scenario, the view strongly argues that
the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that theAgreement cannot
be embodied in a simple executive agreement in the form of an exchange of notes but must be
implemented through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the generally accepted principles of international law
as part of the law of the land, the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the status of
an enforceable domestic law in the context of the aforecited constitutional provision. As a corollary, it
is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate
the objects of the principles of law or alters customary rules embodied in the Rome Statute.
Prescinding

from

the

foregoing

premises,

the

view

thus

advanced

considers

the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that

can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome
Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not clearly
state what precise principles of law, if any, the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the principles of
law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in
prosecuting criminal offenses committed by their respective citizens and military personnel, among
others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is
clearly and unmistakably complementary to the national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity; [70] (2) provides penal sanctions and
criminal liability for their commission;[71] and (3) establishes special courts for the prosecution of these
crimes and for the State to exercise primary criminal jurisdiction. [72] Nowhere in RA 9851 is there a
proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above quoted proviso clearly provides discretion to
the Philippine State on whether to surrender or not a person accused of the crimes under RA
9851. The statutory proviso uses the wordmay. It is settled doctrine in statutory construction that the
word may denotes discretion, and cannot be construed as having mandatory effect. [73] Thus, the
pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine
State.
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such crime, still, the
tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that
the surrender may be made to another State pursuant to the applicable extradition laws and
treaties. The Agreement can already be considered a treaty following this Courts decision in Nicolas
v. Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held that an executive agreement is a
treaty within the meaning of that word in international law and constitutes enforceable domestic
law vis--vis the United States.[76]
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the
other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in
conjunction with the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA
9851.

The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions
were filed questioning the power of the President to enter into foreign loan agreements. However,
before the petitions could be resolved by the Court, the Office of the Solicitor General filed a
Manifestation and Motion averring that the Philippine Government decided not to continue with the
ZTE National Broadband Network Project, thus rendering the petition moot. In resolving the case, the
Court took judicial notice of the act of the executive department of the Philippines (the President) and
found the petition to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of
an executive agreement. He stated that an executive agreement has the force and effect of law x x x
[it] cannot amend or repeal prior laws.[78] Hence, this argument finds no application in this case
seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in
the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an extraditable
offense if it is punishable under the laws in both Contracting Parties x x x,[79] and thereby
concluding that while the Philippines has criminalized under RA 9851 the acts defined in the Rome
Statute as war crimes, genocide and other crimes against humanity, there is no similar legislation in
the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law defining and punishing the
offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section
2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the
criminal offense of war crimes which is similar to the war crimes found in both the Rome Statute and
RA 9851, thus:
(a)

Offense Whoever, whether inside or outside the United States, commits a war
crime, in any of the circumstances described in subsection (b), shall be fined under
this title or imprisoned for life or any term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section
101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed
at Geneva 12 August 1949, or any protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection
[d]) when committed in the context of and in association with an armed conflict
not of an international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions
of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps
and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as
amended on 3 May 1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.[80]
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a)
Basic Offense Whoever, whether in the time of peace or in time of
war and with specific intent to destroy, in whole or in substantial part, a national,
ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of
the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the
physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b). [81]
Arguing further, another view has been advanced that the current US laws do not cover every
crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of the
different crimes under the US laws versus the Rome Statute. The view used a report written by
Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The US Military and the International
Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of
international law, as follows: (1) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; (2) international custom, as evidence of a
general practice accepted as law; (3) the general principles of law recognized by civilized nations;
and (4) subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law. The report does not fall under any of the foregoing enumerated sources. It cannot even
be considered as the teachings of highly qualified publicists. A highly qualified publicist is a scholar of
public international law and the term usually refers to legal scholars or academic writers. [82] It has not
been shown that the authors[83] of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war
crimes under the Rome Statute vis--vis the definitions under US laws:

Rome Statute
Article 6
Genocide
For the purpose of this Statute, genocide
means any of the following acts committed with
intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group to
another group.

Article 8
War Crimes
2. For the purpose of this Statute, war crimes
means:
(a) Grave breaches of the Geneva Conventions
of 12 August 1949, namely, any of the following
acts against persons or property protected
under the provisions of the relevant Geneva
Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
acts:
xxxx
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any of
the following acts committed against persons
taking no active part in the hostilities, including
members of armed forces who have laid down
their arms and those placed hors de combat by
sickness, wounds, detention or any other
cause:
xxxx
(d) Paragraph 2 (c) applies to armed conflicts
not of an international character and thus does
not apply to situations of internal disturbances
and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a
similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of
the following acts: x x x.

US Law
1091. Genocide
(a) Basic Offense Whoever, whether in the time
of peace or in time of war and with specific
intent to destroy, in whole or in substantial part,
a national, ethnic, racial or religious group as
such
(1) kills members of that group;
(2) causes serious bodily injury to members of
that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that
are intended to cause the physical
destruction of the group in whole or in
part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group to
another group;
shall be punished as provided in subsection
(b).
(a) Definition As used in this Section the term
war crime means any conduct
(1) Defined as a grave breach in any of the
international
conventions
signed
at Geneva12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of
the Annex to the Hague Convention IV,
Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d][85]) when committed in the
context of and in association with an
armed conflict not of an international
character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions
of
the
Protocol
on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3
May 1996), when the United States is a
party to such Protocol, willfully kills or
causes serious injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report
itself stated as much, to wit:
Few believed there were wide differences between the crimes under the
jurisdiction of the Court and crimes within the Uniform Code of Military Justice that
would expose US personnel to the Court. Since US military lawyers were instrumental
in drafting the elements of crimes outlined in the Rome Statute, they ensured that most
of the crimes were consistent with those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential gaps between the UCMJ and the
Rome Statute, military experts argued, could be addressed through existing military
laws.[87] x x x
The report went on further to say that [a]ccording to those involved, the elements of crimes laid
out in the Rome Statute have been part of US military doctrine for decades. [88] Thus, the argument
proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Habana[89] case already held international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their determination. For this purpose, where
there is no treaty and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subjects of which
they treat. Such works are resorted to by judicial tribunals, not for the speculations of
their authors concerning what the law ought to be, but for the trustworthy evidence of
what the law really is.[90] (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v.
Hudson,[92] only applies to common law and not to the law of nations or international law. [93] Indeed,
the Court in U.S. v. Hudson only considered the question, whether the Circuit Courts of the United
States can exercise a common law jurisdiction in criminal cases.[94] Stated otherwise, there is no
common law crime in theUS but this is considerably different from international law.
The US doubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute. [95] In fact, years later, US courts would
apply international law as a source of criminal liability despite the lack of a local statute criminalizing it
as such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that [f]rom the very
beginning of its history this Court has recognized and applied the law of war as including that part of
the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as of enemy individuals. [97] It went on further to explain that Congress had not
undertaken the task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not
itself undertaken to codify that branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the law of
nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to
define and punish the offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the 15th Article of War to
offenders or offenses that x x x by the law of war may be triable by such military
commissions. Congress has incorporated by reference, as within the jurisdiction of
military commissions, all offenses which are defined as such by the law of war x x x,
and which may constitutionally be included within that jurisdiction. [98] x x x (Emphasis
supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been held
that genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of jus
cogens.[99]
Customary international law or international custom is a source of international law as stated in
the Statute of the ICJ.[100] It is defined as the general and consistent practice of states recognized and
followed by them from a sense of legal obligation. [101] In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris sive
necessitates, the subjective element.[102]
State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States.[103] It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration. [104] While, opinio juris, the psychological element,
requires that the state practice or norm be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring it. [105]
The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles. [107] As a result, jus
cogens norms are deemed peremptory and non-derogable. [108] When applied to international
crimes, jus cogens crimes have been deemed so fundamental to the existence of a just international
legal order that states cannot derogate from them, even by agreement. [109]
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned offenses,
even when no other recognized basis for jurisdiction exists. [110] The rationale behind this principle is
that the crime committed is so egregious that it is considered to be committed against all members of
the international community[111] and thus granting every State jurisdiction over the crime. [112]
Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in
the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., established, widespread, and consistent
practice on the part of States, [113] does not, under the premises, appear to be obtaining as reflected in
this simple reality: As of October 12, 2010, only 114 [114] States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States
out of a total of 194 [115] countries in the world, or roughly 58.76%, have ratified the Rome Statute casts
doubt on whether or not the perceived principles contained in the Statute have attained the status of
customary law and should be deemed as obligatory international law. The numbers even tend to
argue against the urgency of establishing international criminal courts envisioned in the Rome
Statute. Lest it be overlooked, the Philippines, judging by the action or inaction of its top officials,
does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have
elapsed since the Philippine representative signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means a general and consistent practice
of states followed by them from a sense of legal obligation [opinio juris] x x x. This
statement contains the two basic elements of custom: the material factor, that is how the
states behave, and the psychological factor or subjective factor, that is, why they
behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave the
way they do because they consider it obligatory to behave thus or do they do it only as
a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is
obligatory, is what makes practice an international rule. Without it, practice is not law.
[116]
(Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological

element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent
practice, in a certain manner. This implicitly requires belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. [117] Like the first element, the second element
has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. [118] Even further, the Rome Statute
specifically and unequivocally requires that: This Statute is subject to ratification, acceptance or
approval by signatory States.[119] These clearly negate the argument that such has already attained
customary status.
More importantly, an act of the executive branch with a foreign government must be afforded
great respect. The power to enter into executive agreements has long been recognized to be lodged
with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, [t]he power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. [120] The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and
judicial branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US NonSurrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for
lack of merit. No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

G. Ordinances
1. Validity
EN BANC
WHITE LIGHT CORPORATION, G.R. No. 122846
TITANIUM CORPORATION and
STA. MESA TOURIST & DEVE- Present:
LOPMENT CORPORATION,
Petitioners, PUNO, C.J.

QUISUMBING,
YNARES SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
CITY OF MANILA, represented by DE CASTRO,
MAYOR ALFREDO S. LIM, BRION, and
Respondent. PERALTA, JJ.
Promulgated:
January 20, 2009

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

DECISION

TINGA, J.:
With another city ordinance of Manila also principally involving the tourist district as subject, the Court
is confronted anew with the incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality.

In City of Manila v. Laguio, Jr.,[1] the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The
petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or wash up rates for such abbreviated
stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty,
due process and equal protection of law. The same parameters apply to the present petition.
This Petition[2] under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the
Decision[3] in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City
Ordinance No. 7774 entitled, An Ordinance Prohibiting Short-Time Admission, Short-Time Admission
Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and
Similar Establishments in the City of Manila (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. [4] The
Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City
Government to protect the best interest, health and welfare, and the morality of its
constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as An Ordinance prohibiting
short time admission in hotels, motels, lodging houses, pension houses and similar
establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
wash-up rate or other similarly concocted terms, are hereby prohibited in hotels,
motels, inns, lodging houses, pension houses and similar establishments in the City
of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance
and charging of room rate for less than twelve (12) hours at any given time or the
renting out of rooms more than twice a day or any other term that may be concocted

by owners or managers of said establishments but would mean the same or would
bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a fine of
Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding
one (1) year or both such fine and imprisonment at the discretion of the
court; Provided, That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable: Provided, further, That
in case of subsequent conviction for the same offense, the business license of the
guilty party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
consistent with or contrary to this measure or any portion hereof are hereby deemed
repealed.
. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10,
1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)[5] with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as
defendant, herein respondent City of Manila (the City) represented by Mayor Lim. [6] MTDC prayed
that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court
in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a
short time basis as well as to charge customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC)
and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention[7] on the ground that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in Manila.[8] The three companies are components
of the Anito Group of Companies which owns and operates several hotels and motels in Metro
Manila.[9]
On December 23, 1992, the RTC granted the motion to intervene. [10] The RTC also notified the
Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the
same date, MTDC moved to withdraw as plaintiff. [11]

On December 28, 1992, the RTC granted MTDC's motion to withdraw. [12] The RTC issued a TRO
on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance. [13] The City
filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police
power.[14]
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from
the enforcement of the Ordinance. [15] A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question. [16] On October 20, 1993, the RTC rendered a
decision declaring the Ordinance null and void. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City
of Manila is hereby declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby made permanent.

SO ORDERED.[17]
The RTC noted that the ordinance strikes at the personal liberty of the individual guaranteed
and jealously guarded by the Constitution. [18] Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to needed investment, as well as the
right to operate economic enterprises. Finally, from the observation that the illicit relationships the
Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour
stay, the RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,
[19]
where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be
effected through an inter-province ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.[20] The petition
was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court
treated the petition as a petition for certiorari and referred the petition to the Court of Appeals. [21]

Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police
power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among
other local government units, the power:

[To] regulate the establishment, operation and maintenance of cafes,

restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and
other similar establishments, including tourist guides and transports. [22]
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III,
Section 18(kk) of the Revised Manila Charter, thus:

to enact all ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the prosperity and the promotion of the morality,
peace, good order, comfort, convenience and general welfare of the city and its
inhabitants, and such others as be necessary to carry into effect and discharge the
powers and duties conferred by this Chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single offense. [23]
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to
privacy and the freedom of movement; it is an invalid exercise of police power; and it is an
unreasonable and oppressive interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.[24] First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied
since it aims to curb immoral activities. There is a lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor
of Manila, liberty is regulated by law.

TC, WLC and STDC come to this Court via petition for review on certiorari.[25] In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.

II.

We must address the threshold issue of petitioners standing. Petitioners allege that as owners of
establishments offering wash-up rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that party's participation in the
case. More importantly, the doctrine of standing is built on the principle of separation of powers,
[26]
sparing as it does unnecessary interference or invalidation by the judicial branch of the actions
rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from
the Constitution.[27] The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. [28] In this jurisdiction, the extancy of a direct and
personal interest presents the most obvious cause, as well as the standard test for a petitioner's
standing.[29] In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.[30]
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.[31]
For this particular set of facts, the concept of third party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio,[32] the United States Supreme Court wrote that: We have
recognized the right of litigants to bring actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him or her a
"sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close
relation to the third party; and there must exist some hindrance to the third party's ability to protect his
or her own interests."[33] Herein, it is clear that the business interests of the petitioners are likewise
injured by the Ordinance. They rely on the patronage of their customers for their continued viability
which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil
Liberties Union in the United States may also be construed as a hindrance for customers to bring suit.
[34]

American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut,[35] the United States Supreme
Court held that physicians had standing to challenge a reproductive health statute that would penalize
them as accessories as well as to plead the constitutional protections available to their patients. The
Court held that:

The rights of husband and wife, pressed here, are likely to be diluted or adversely
affected unless those rights are considered in a suit involving those who have this
kind of confidential relation to them." [36]

An even more analogous example may be found in Craig v. Boren,[37] wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim
of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the
age of 21 and to females under the age of 18. The United States High Court explained that the
vendors had standing "by acting as advocates of the rights of third parties who seek access to their
market or function."[38]
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. [39] In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a wash-rate time frame.
III.

To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v.
Hon. City Mayor of Manila.[40] Ermita-Malate concerned the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance

was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these establishments have been severely restricted. At
its core, this is another case about the extent to which the State can intrude into and regulate the lives
of its citizens.

The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.[41]

The Ordinance prohibits two specific and distinct business practices, namely wash rate
admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in
the police power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.
A.

Police power, while incapable of an exact definition, has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an
efficient and flexible response as the conditions warrant. [42] Police power is based upon the concept of
necessity of the State and its corresponding right to protect itself and its people. [43] Police power has
been used as justification for numerous and varied actions by the State. These range from the
regulation of dance halls,[44]movie theaters,[45] gas stations[46] and cockpits.[47] The awesome scope of
police power is best demonstrated by the fact that in its hundred or so years of presence in our
nations legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with
the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of
Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.

Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are compelled to nullify executive
or legislative actions, yet another form of caution emerges. If the Court were animated by the same
passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is
compromised by any perception that the judiciary is merely the third political branch of government.
We derive our respect and good standing in the annals of history by acting as judicious and neutral
arbiters of the rule of law, and there is no surer way to that end than through the development of
rigorous and sophisticated legal standards through which the courts analyze the most fundamental
and far-reaching constitutional questions of the day.

B.

The primary constitutional question that confronts us is one of due process, as guaranteed
under Section 1, Article III of the Constitution. Due process evades a precise definition. [48] The
purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty
and property of individuals. The due process guaranty serves as a protection against arbitrary
regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as
their property is concerned.

The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.[49] Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the
form of notice given to the level of formality of a hearing.

If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government
has sufficient justification for depriving a person of life, liberty, or property.[50]
The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due process has not been
predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.

C.

The general test of the validity of an ordinance on substantive due process grounds is best
tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S.
v. Carolene Products.[51] Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a discrete and insular minority or
infringement of a fundamental right. [52] Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic legislation.

A third standard, denominated as heightened or immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating classifications based on gender [53] and legitimacy.[54] Immediate
scrutiny was adopted by the U.S. Supreme Court in Craig,[55] after the Court declined to do so in Reed
v. Reed.[56] While the test may have first been articulated in equal protection analysis, it has in
the United States since been applied in all substantive due process cases as well.

We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.[57] Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. [58] Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered. [59] Applying strict

scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms.[60] Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier
applications to equal protection. [61] The United States Supreme Court has expanded the scope of
strict scrutiny to protect fundamental rights such as suffrage, [62] judicial access[63] and interstate travel.
[64]

If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect
only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we
are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard the rational basis test. Yet as earlier stated,
we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons
those persons who would be deprived of availing short time access or wash-up rates to the lodging
establishments in question.

Viewed cynically, one might say that the infringed rights of these customers were are trivial
since they seem shorn of political consequence. Concededly, these are not the sort of cherished
rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights
does not shelter gravitas alone. Indeed, it is those trivial yet fundamental freedoms which the people
reflexively exercise any day without the impairing awareness of their constitutional consequence that
accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a
fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may or
what may not be done; but rather an atmosphere of freedom where the people do not feel labored
under a Big Brother presence as they interact with each other, their society and nature, in a manner
innately understood by them as inherent, without doing harm or injury to others.
D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld
in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to

include "the right to exist and the right to be free from arbitrary restraint or servitude.
The term cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities with which
he has been endowed by his Creator, subject only to such restraint as are necessary for
the common welfare."[[65]] In accordance with this case, the rights of the citizen to be
free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced
in the concept of liberty.[[66]]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to
clarify the meaning of "liberty." It said:

While the Court has not attempted to define with exactness the
liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term
denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life,
to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized . . . as essential to
the orderly pursuit of happiness by free men. In a Constitution for a free
people, there can be no doubt that the meaning of "liberty" must be broad
indeed.[67] [Citations omitted]

It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments have gained notoriety as
venue of prostitution, adultery and fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes
and thrill-seekers.[68] Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be
denied that legitimate sexual behavior among willing married or consenting single adults which is
constitutionally protected[69] will be curtailed as well, as it was in the City of Manila case. Our holding
therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to privacy
and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words
of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His

separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are built.
He cannot abandon the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built out of that
experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself
is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in itself it
is fully deserving of constitutional protection. Governmental powers should stop short of
certain intrusions into the personal life of the citizen. [70]

We cannot discount other legitimate activities which the Ordinance would proscribe or impair.
There are very legitimate uses for a wash rate or renting the room out for more than twice a day.
Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily
out in their homes. In transit passengers who wish to wash up and rest between trips have a
legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons
in need of comfortable private spaces for a span of a few hours with purposes other than having sex
or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.

E.

That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and
the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of
the Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the
means must be reasonably necessary for the accomplishment of the purpose and not unduly

oppressive of private rights.[71] It must also be evident that no other alternative for the accomplishment
of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. [72]

Lacking a concurrence of these requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject
to judicial review when life, liberty or property is affected. [73] However, this is not in any way meant to
take it away from the vastness of State police power whose exercise enjoys the presumption of
validity.[74]

Similar to the Comelec resolution requiring newspapers to donate advertising space to

candidates, this Ordinance is a blunt and heavy instrument. [75] The Ordinance makes no distinction
between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate
actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A
plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without exception to the unjustified
prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its
longtime home,[76] and it is skeptical of those who wish to depict our capital city the Pearl of the Orient
as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquindreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will
have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common
problem confronted by the modern metropolis wherever in the world. The solution to such perceived
decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact
be diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective in
easing the situation. So would the strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit

activities. Moreover, drug dealers and prostitutes can in fact collect wash rates from their clientele by
charging their customers a portion of the rent for motel rooms and even apartments.

IV.
We reiterate that individual rights may be adversely affected only to the extent that may fairly
be required by the legitimate demands of public interest or public welfare.The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned the
Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to
protect.[77] The notion that the promotion of public morality is a function of the State is as old as
Aristotle.[78] The advancement of moral relativism as a school of philosophy does not de-legitimize the
role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is
conceivable that a society with relatively little shared morality among its citizens could be functional
so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of
different interests.[79]

To be candid about it, the oft-quoted American maxim that you cannot legislate morality is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong. [80] Our penal laws, for one, are founded on ageold moral traditions, and as long as there are widely accepted distinctions between right and wrong,
they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the
right-wrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life
to the fullest. Our democracy is distinguished from non-free societies not with any more extensive
elaboration on our part of what is moral and immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate, and protected by the State. Independent and fairminded judges themselves are under a moral duty to uphold the Constitution as the embodiment of
the rule of law, by reason of their expression of consent to do so when they take the oath of office,
and because they are entrusted by the people to uphold the law.[81]

Even as the implementation of moral norms remains an indispensable complement to

governance, that prerogative is hardly absolute, especially in the face of the norms of due process of
liberty. And while the tension may often be left to the courts to relieve, it is possible for the
government to avoid the constitutional conflict by employing more judicious, less drastic means to
promote morality.

WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals

is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, isREINSTATED.
Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.
SO ORDERED.

H. Administrative issuances,
rules, and regulations
1. Validty

G.R. No. 179579

Present:

Case: Tanada v Tuvera

CARPIO, J., Chairperson,
BRION,
PEREZ,
COMMISSIONER
OF
CUSTOMS and the DISTRICT
COLLECTOR OF THE PORT
OF SUBIC,

SERENO, and
REYES, JJ.

Petitioners,
Promulgated:

February 1, 2012
- versus -

HYPERMIX FEEDS
CORPORATION,
Respondent.

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

DECISION
SERENO, J.:
Before us is a Petition for Review under Rule 45, [1] assailing the Decision[2] and the
Resolution[3] of the Court of Appeals (CA), which nullified the Customs Memorandum Order (CMO)
No. 27-2003[4] on the tariff classification of wheat issued by petitioner Commissioner of Customs.
The antecedent facts are as follows:
On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the
Memorandum, for tariff purposes, wheat was classified according to the following: (1) importer or
consignee; (2) country of origin; and (3) port of discharge. [5] The regulation provided an exclusive list
of corporations, ports of discharge, commodity descriptions and countries of origin. Depending on
these factors, wheat would be classified either as food grade or feed grade. The corresponding tariff
for food grade wheat was 3%, for feed grade, 7%.
CMO 27-2003 further provided for the proper procedure for protest or Valuation and
Classification Review Committee (VCRC) cases. Under this procedure, the release of the articles that
were the subject of protest required the importer to post a cash bond to cover the tariff differential. [6]
A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a
Petition for Declaratory Relief [7] with the Regional Trial Court (RTC) of Las Pias City. It anticipated the
implementation of the regulation on its imported and perishable Chinese milling wheat in transit from
China.[8] Respondent contended that CMO 27-2003 was issued without following the mandate of the
Revised Administrative Code on public participation, prior notice, and publication or registration with
the University of the Philippines Law Center.
Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier
without the benefit of prior assessment and examination; thus, despite having imported food grade
wheat, it would be subjected to the 7% tariff upon the arrival of the shipment, forcing them to pay
133% more than was proper.
Furthermore, respondent claimed that the equal protection clause of the Constitution was
violated when the regulation treated non-flour millers differently from flour millers for no reason at all.
Lastly, respondent asserted that the retroactive application of the regulation was confiscatory
in nature.
On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for
twenty (20) days from notice.[9]
Petitioners thereafter filed a Motion to Dismiss. [10] They alleged that: (1) the RTC did not have
jurisdiction over the subject matter of the case, because respondent was asking for a judicial
determination of the classification of wheat; (2) an action for declaratory relief was improper; (3) CMO
27-2003 was an internal administrative rule and not legislative in nature; and (4) the claims of
respondent were speculative and premature, because the Bureau of Customs (BOC) had yet to

examine respondents products. They likewise opposed the application for a writ of preliminary
injunction on the ground that they had not inflicted any injury through the issuance of the regulation;
and that the action would be contrary to the rule that administrative issuances are assumed valid until
declared otherwise.
On 28 February 2005, the parties agreed that the matters raised in the application for
preliminary injunction and the Motion to Dismiss would just be resolved together in the main case.
Thus, on 10 March 2005, the RTC rendered its Decision [11] without having to resolve the application
for preliminary injunction and the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the foregoing, the Petition is GRANTED and the
subject Customs Memorandum Order 27-2003 is declared INVALID and OF NO
FORCE AND EFFECT. Respondents Commissioner of Customs, the District Collector of
Subic or anyone acting in their behalf are to immediately cease and desist from
enforcing the said Customs Memorandum Order 27-2003.
SO ORDERED.[12]
The RTC held that it had jurisdiction over the subject matter, given that the issue raised by
respondent concerned the quasi-legislative powers of petitioners. It likewise stated that a petition for
declaratory relief was the proper remedy, and that respondent was the proper party to file it. The court
considered that respondent was a regular importer, and that the latter would be subjected to the
application of the regulation in future transactions.
With regard to the validity of the regulation, the trial court found that petitioners had not
followed the basic requirements of hearing and publication in the issuance of CMO 27-2003. It
likewise held that petitioners had substituted the quasi-judicial determination of the commodity by a
quasi-legislative predetermination.[13] The lower court pointed out that a classification based on
importers and ports of discharge were violative of the due process rights of respondent.
Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the
same allegations in defense of CMO 27-2003. [14] The appellate court, however, dismissed the appeal.
It held that, since the regulation affected substantial rights of petitioners and other importers,
petitioners should have observed the requirements of notice, hearing and publication.
Hence, this Petition.
Petitioners raise the following issues for the consideration of this Court:
I.

THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS

NOT IN ACCORD WITH THE LAW AND PREVAILING JURISPRUDENCE.

II.

THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL

COURT HAS JURISDICTION OVER THE CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. Any person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before breach or
violation thereof, bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights or
duties, thereunder.
The requirements of an action for declaratory relief are as follows: (1) there must be a
justiciable controversy; (2) the controversy must be between persons whose interests are adverse;
(3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue
involved must be ripe for judicial determination. [15] We find that the Petition filed by respondent before
the lower court meets these requirements.
First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner
Commissioner of Customs. In Smart Communications v. NTC,[16] we held:

The determination of whether a specific rule or set of rules issued by an

administrative agency contravenes the law or the constitution is within the jurisdiction of
the regular courts. Indeed, the Constitution vests the power of judicial review or
the power to declare a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in the courts,
including the regional trial courts. This is within the scope of judicial power,
which includes the authority of the courts to determine in an appropriate action
the validity of the acts of the political departments. Judicial power includes the duty
of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. (Emphasis supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance

Secretary,[17] we said:
xxx [A] legislative rule is in the nature of subordinate legislation, designed to
implement a primary legislation by providing the details thereof. xxx
In addition such rule must be published. On the other hand, interpretative rules are
designed to provide guidelines to the law which the administrative agency is in charge
of enforcing.

Accordingly, in considering a legislative rule a court is free to make three

inquiries: (i) whether the rule is within the delegated authority of the
administrative agency; (ii)whether it is reasonable; and (iii) whether it was issued
pursuant to proper procedure. But the court is not free to substitute its judgment as
to the desirability or wisdom of the rule for the legislative body, by its delegation of
administrative judgment, has committed those questions to administrative judgments
and not to judicial judgments. In the case of an interpretative rule, the inquiry is not into
the validity but into the correctness or propriety of the rule. As a matter of power a
court, when confronted with an interpretative rule, is free to (i) give the force of law to
the rule; (ii) go to the opposite extreme and substitute its judgment; or (iii) give some
intermediate degree of authoritative weight to the interpretative rule. (Emphasis
supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are
summarily imposing a tariff rate that respondent is refusing to pay.
Third, it is clear that respondent has a legal and substantive interest in the implementation of
CMO 27-2003. Respondent has adequately shown that, as a regular importer of wheat, on 14 August
2003, it has actually made shipments of wheat from China to Subic. The shipment was set to arrive in
December 2003. Upon its arrival, it would be subjected to the conditions of CMO 27-2003. The
regulation calls for the imposition of different tariff rates, depending on the factors enumerated
therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade
wheat, instead of the 3% tariff on food grade wheat. In addition, respondent would have to go through
the procedure under CMO 27-2003, which would undoubtedly toll its time and resources. The lower
court correctly pointed out as follows:
xxx As noted above, the fact that petitioner is precisely into the business of
importing wheat, each and every importation will be subjected to constant disputes
which will result into (sic) delays in the delivery, setting aside of funds as cash
bond required in the CMO as well as the resulting expenses thereof. It is easy to
see that business uncertainty will be a constant occurrence for petitioner. That
the sums involved are not minimal is shown by the discussions during the
hearings conducted as well as in the pleadings filed. It may be that the petitioner
can later on get a refund but such has been foreclosed because the Collector of
Customs and the Commissioner of Customs are bound by their own CMO. Petitioner
cannot get its refund with the said agency. We believe and so find that Petitioner has
presented such a stake in the outcome of this controversy as to vest it with standing to
file this petition.[18] (Emphasis supplied)

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is
inevitable[19] for the simple and uncontroverted reason that respondent is not included in the
enumeration of flour millers classified as food grade wheat importers. Thus, as the trial court stated, it

would have to file a protest case each time it imports food grade wheat and be subjected to the 7%
tariff.
It is therefore clear that a petition for declaratory relief is the right remedy given the
circumstances of the case.
Considering that the questioned regulation would affect the substantive rights of respondent as
explained above, it therefore follows that petitioners should have applied the pertinent provisions of
Book VII, Chapter 2 of the Revised Administrative Code, to wit:
Section 3. Filing. (1) Every agency shall file with the University of the Philippines
Law Center three (3) certified copies of every rule adopted by it. Rules in force on the
date of effectivity of this Code which are not filed within three (3) months from that date
shall not thereafter be the bases of any sanction against any party of persons.
xxx xxx xxx
Section 9. Public Participation. - (1) If not otherwise required by law, an agency
shall, as far as practicable, publish or circulate notices of proposed rules and afford
interested parties the opportunity to submit their views prior to the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall be valid unless the proposed
rates shall have been published in a newspaper of general circulation at least two (2)
weeks before the first hearing thereon.
(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing
further than its bare issuance, for it gives no real consequence more than what the law itself has
already prescribed. When, on the other hand, the administrative rule goes beyond merely providing
for the means that can facilitate or render least cumbersome the implementation of the law but
substantially increases the burden of those governed, it behooves the agency to accord at least to
those directly affected a chance to be heard, and thereafter to be duly informed, before that new
issuance is given the force and effect of law.[20]
Likewise, in Taada v. Tuvera,[21] we held:
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens.Without such notice and publication, there would be no basis for
the application of the maxim ignorantia legis non excusat. It would be the height of
injustice to punish or otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansa and for the diligent ones, ready access to the legislative
records no such publicity accompanies the law-making process of the President. Thus,
without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. (Emphasis
supplied)

Because petitioners failed to follow the requirements enumerated by the Revised

Administrative Code, the assailed regulation must be struck down.
Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for being
violative of the equal protection clause of the Constitution.
The equal protection clause means that no person or class of persons shall be deprived of the
same protection of laws enjoyed by other persons or other classes in the same place in like
circumstances. Thus, the guarantee of the equal protection of laws is not violated if there is a
reasonable classification. For a classification to be reasonable, it must be shown that (1) it rests on
substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all members of the same class. [22]
Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the
quality of wheat is affected by who imports it, where it is discharged, or which country it came from.
Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food
grade wheat, the product would still be declared as feed grade wheat, a classification subjecting them
to 7% tariff. On the other hand, even if the importers listed under CMO 27-2003 have imported feed
grade wheat, they would only be made to pay 3% tariff, thus depriving the state of the taxes due. The
regulation, therefore, does not become disadvantageous to respondent only, but even to the state.
It is also not clear how the regulation intends to monitor more closely wheat importations and
thus prevent their misclassification. A careful study of CMO 27-2003 shows that it not only fails to
achieve this end, but results in the opposite. The application of the regulation forecloses the
possibility that other corporations that are excluded from the list import food grade wheat; at the same
time, it creates an assumption that those who meet the criteria do not import feed grade wheat. In the
first case, importers are unnecessarily burdened to prove the classification of their wheat imports;
while in the second, the state carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the regulation limited
the customs officers duties mandated by Section 1403 of the Tariff and Customs Law, as amended.
The law provides:

Section 1403. Duties of Customs Officer Tasked to Examine, Classify, and

Appraise Imported Articles. The customs officer tasked to examine, classify, and
appraise imported articlesshall determine whether the packages designated for
examination and their contents are in accordance with the declaration in the
entry, invoice and other pertinent documents and shall make return in such a
manner as to indicate whether the articles have been truly and correctly declared
in the entry as regard their quantity, measurement, weight, and tariff classification
and not imported contrary to law. He shall submit samples to the laboratory for
analysis when feasible to do so and when such analysis is necessary for the proper
classification, appraisal, and/or admission into the Philippines of imported articles.
Likewise, the customs officer shall determine the unit of quantity in which
they are usually bought and sold, and appraise the imported articles in
accordance with Section 201 of this Code.
Failure on the part of the customs officer to comply with his duties shall subject
him to the penalties prescribed under Section 3604 of this Code.
The provision mandates that the customs officer must first assess and determine the classification of
the imported article before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified
the article even before the customs officer had the chance to examine it. In effect, petitioner
Commissioner of Customs diminished the powers granted by the Tariff and Customs Code with
regard to wheat importation when it no longer required the customs officers prior examination and
assessment of the proper classification of the wheat.
It is well-settled that rules and regulations, which are the product of a delegated power to
create new and additional legal provisions that have the effect of law, should be within the scope of
the statutory authority granted by the legislature to the administrative agency. It is required that the
regulation be germane to the objects and purposes of the law; and that it be not in contradiction to,
but in conformity with, the standards prescribed by law.[23]
In summary, petitioners violated respondents right to due process in the issuance of CMO 272003 when they failed to observe the requirements under the Revised Administrative Code.
Petitioners likewise violated respondents right to equal protection of laws when they provided for an
unreasonable classification in the application of the regulation. Finally, petitioner Commissioner of
Customs went beyond his powers of delegated authority when the regulation limited the powers of the
customs officer to examine and assess imported articles.
WHEREFORE, in view of the foregoing, the Petition is DENIED.
SO ORDERED.

G.R. No. L-16704

March 17, 1962

VICTORIAS MILLING COMPANY, INC., petitioner-appellant,

vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.
Ross, Selph and Carrascoso for petitioner-appellant.
Office of the Solicitor General and Ernesto T. Duran for respondent-appellee.
BARRERA, J.:
On October 15, 1958, the Social Security Commission issued its Circular No. 22 of the following
tenor: .
Effective November 1, 1958, all Employers in computing the premiums due the System, will
take into consideration and include in the Employee's remuneration all bonuses and overtime
pay, as well as the cash value of other media of remuneration. All these will comprise the
Employee's remuneration or earnings, upon which the 3-1/2% and 2-1/2% contributions will be
based, up to a maximum of P500 for any one month.
Upon receipt of a copy thereof, petitioner Victorias Milling Company, Inc., through counsel, wrote the
Social Security Commission in effect protesting against the circular as contradictory to a previous
Circular No. 7, dated October 7, 1957 expressly excluding overtime pay and bonus in the
computation of the employers' and employees' respective monthly premium contributions, and
submitting, "In order to assist your System in arriving at a proper interpretation of the term
'compensation' for the purposes of" such computation, their observations on Republic Act 1161 and
its amendment and on the general interpretation of the words "compensation", "remuneration" and
"wages". Counsel further questioned the validity of the circular for lack of authority on the part of the
Social Security Commission to promulgate it without the approval of the President and for lack of
publication in the Official Gazette.
Overruling these objections, the Social Security Commission ruled that Circular No. 22 is not a rule or
regulation that needed the approval of the President and publication in the Official Gazette to be

effective, but a mere administrative interpretation of the statute, a mere statement of general policy or
opinion as to how the law should be construed.
Not satisfied with this ruling, petitioner comes to this Court on appeal.
The single issue involved in this appeal is whether or not Circular No. 22 is a rule or regulation, as
contemplated in Section 4(a) of Republic Act 1161 empowering the Social Security Commission "to
adopt, amend and repeal subject to the approval of the President such rules and regulations as may
be necessary to carry out the provisions and purposes of this Act."
There can be no doubt that there is a distinction between an administrative rule or regulation and an
administrative interpretation of a law whose enforcement is entrusted to an administrative body. When
an administrative agency promulgates rules and regulations, it "makes" a new law with the force and
effect of a valid law, while when it renders an opinion or gives a statement of policy, it merely
interprets a pre-existing law (Parker, Administrative Law, p. 197; Davis, Administrative Law, p. 194).
Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon
the administrative agency by law, partake of the nature of a statute, and compliance therewith may be
enforced by a penal sanction provided in the law. This is so because statutes are usually couched in
general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by
the legislature. The details and the manner of carrying out the law are often times left to the
administrative agency entrusted with its enforcement. In this sense, it has been said that rules and
regulations are the product of a delegated power to create new or additional legal provisions that
have the effect of law. (Davis,op. cit., p. 194.) .
A rule is binding on the courts so long as the procedure fixed for its promulgation is followed and its
scope is within the statutory authority granted by the legislature, even if the courts are not in
agreement with the policy stated therein or its innate wisdom (Davis, op. cit., 195-197). On the other
hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally
determine what the law means.
Circular No. 22 in question was issued by the Social Security Commission, in view of the amendment
of the provisions of the Social Security Law defining the term "compensation" contained in Section 8
(f) of Republic Act No. 1161 which, before its amendment, reads as follows: .
(f) Compensation All remuneration for employment include the cash value of any
remuneration paid in any medium other than cash except (1) that part of the remuneration in
excess of P500 received during the month; (2) bonuses, allowances or overtime pay; and (3)
dismissal and all other payments which the employer may make, although not legally required
to do so.
Republic Act No. 1792 changed the definition of "compensation" to:
(f) Compensation All remuneration for employment include the cash value of any
remuneration paid in any medium other than cash except that part of the remuneration in
excess of P500.00 received during the month.

It will thus be seen that whereas prior to the amendment, bonuses, allowances, and overtime pay
given in addition to the regular or base pay were expressly excluded, or exempted from the definition
of the term "compensation", such exemption or exclusion was deleted by the amendatory law. It thus
became necessary for the Social Security Commission to interpret the effect of such deletion or
elimination. Circular No. 22 was, therefore, issued to apprise those concerned of the interpretation or
understanding of the Commission, of the law as amended, which it was its duty to enforce. It did not
add any duty or detail that was not already in the law as amended. It merely stated and circularized
the opinion of the Commission as to how the law should be construed.1wph1.t
The case of People v. Jolliffe (G.R. No. L-9553, promulgated on May 30, 1959) cited by appellant,
does not support its contention that the circular in question is a rule or regulation. What was there
said was merely that a regulation may be incorporated in the form of a circular. Such statement
simply meant that the substance and not the form of a regulation is decisive in determining its nature.
It does not lay down a general proposition of law that any circular, regardless of its substance and
even if it is only interpretative, constitutes a rule or regulation which must be published in the Official
Gazette before it could take effect.
The case of People v. Que Po Lay (50 O.G. 2850) also cited by appellant is not applicable to the
present case, because the penalty that may be incurred by employers and employees if they refuse
to pay the corresponding premiums on bonus, overtime pay, etc. which the employer pays to his
employees, is not by reason of non-compliance with Circular No. 22, but for violation of the specific
legal provisions contained in Section 27(c) and (f) of Republic Act No. 1161.
We find, therefore, that Circular No. 22 purports merely to advise employers-members of the System
of what, in the light of the amendment of the law, they should include in determining the monthly
compensation of their employees upon which the social security contributions should be based, and
that such circular did not require presidential approval and publication in the Official Gazette for its
effectivity.
It hardly need be said that the Commission's interpretation of the amendment embodied in its Circular
No. 22, is correct. The express elimination among the exemptions excluded in the old law, of all
bonuses, allowances and overtime pay in the determination of the "compensation" paid to employees
makes it imperative that such bonuses and overtime pay must now be included in the employee's
remuneration in pursuance of the amendatory law. It is true that in previous cases, this Court has held
that bonus is not demandable because it is not part of the wage, salary, or compensation of the
employee. But the question in the instant case is not whether bonus is demandable or not as part of
compensation, but whether, after the employer does, in fact, give or pay bonus to his employees,
such bonuses shall be considered compensation under the Social Security Act after they have been
received by the employees. While it is true that terms or words are to be interpreted in accordance
with their well-accepted meaning in law, nevertheless, when such term or word is specifically defined
in a particular law, such interpretation must be adopted in enforcing that particular law, for it can not
be gainsaid that a particular phrase or term may have one meaning for one purpose and another
meaning for some other purpose. Such is the case that is now before us. Republic Act 1161
specifically defined what "compensation" should mean "For the purposes of this Act". Republic Act
1792 amended such definition by deleting same exemptions authorized in the original Act. By virtue of
this express substantial change in the phraseology of the law, whatever prior executive or judicial

construction may have been given to the phrase in question should give way to the clear mandate of
the new law.
IN VIEW OF THE FOREGOING, the Resolution appealed from is hereby affirmed, with costs against
appellant. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon and
De Leon, JJ., concur.

G.R. No. L-59743 May 31 1982

NATIONAL FEDERATION OF SUGAR WORKERS (NFSW), petitioner,
vs.
ETHELWOLDO R. OVEJERA, CENTRAL AZUCARERA DE LA CARLOTA (CAC), COL. ROGELIO
DEINLA, as Provincial Commander, 3311st P.C. Command, Negros Occidental, respondents.

PLANA, J:
This is a petition for prohibition seeking to annul the decision dated February 20, 1982 of Labor
Arbiter Ethelwoldo R. Ovejera of the National Labor Relations Commission (NLRC) with station at the
Regional Arbitration Branch No. VI-A, Bacolod City, which, among others, declared illegal the ongoing
strike of the National Federation of Sugar Workers (NFSW) at the Central Azucarera de la Carlota
(CAC), and to restrain the implementation thereof.

I. FACTS
1. NFSW has been the bargaining agent of CAC rank and file employees (about 1200 of more than
2000 personnel) and has concluded with CAC a collective bargaining agreement effective February
16, 1981 February 15, 1984. Under Art. VII, Sec. 5 of the said CBA
Bonuses The parties also agree to maintain the present practice on the grant of
Christmas bonus, milling bonus, and amelioration bonus to the extent as the latter is
required by law.
The Christmas and milling bonuses amount to 1- months' salary.
2. On November 28, 1981, NFSW struck allegedly to compel the payment of the 13th month pay
under PD 851, in addition to the Christmas, milling and amelioration bonuses being enjoyed by CAC
workers.
3. To settle the strike, a compromise agreement was concluded between CAC and NFSW on
November 30,1981. Under paragraph 4 thereof
The parties agree to abide by the final decision of the Supreme Court in any case
involving the 13th Month Pay Law if it is clearly held that the employer is liable to pay a
13th month pay separate and distinct from the bonuses already given.
4. As of November 30, 1981, G.R. No. 51254 (Marcopper Mining Corp. vs. Blas Ople and Amado
Inciong, Minister and Deputy Minister of Labor, respectively, and Marcopper Employees Labor Union,
Petition for certiorari and Prohibition) was still pending in the Supreme Court. The Petition had been
dismissed on June 11, 1981 on the vote of seven Justices. 1 A motion for reconsideration thereafter
filed was denied in a resolution dated December 15, 1981, with only five Justices voting for denial. (3
dissented; 2 reserved their votes: 4 did not take part.)
On December 18, 1981 the decision of June 11, 1981 having become final and executory entry
of judgment was made.
5. After the Marcopper decision had become final, NFSW renewed its demand that CAC give the 13th
month pay. CAC refused.
6. On January 22, 1982, NFSW filed with the Ministry of Labor and Employment (MOLE) Regional
Office in Bacolod City a notice to strike based on non-payment of the 13th month pay. Six days after,
NFSW struck.
7. One day after the commencement of the strike, or on January 29, 1982, a report of the strike-vote
was filed by NFSW with MOLE.
8. On February 8, 1982, CAC filed a petition (R.A.B. Case No. 0110-82) with the Regional Arbitration
Branch VI-A, MOLE, at Bacolod City to declare the strike illegal, principally for being violative of Batas
Pambansa Blg. 130, that is, the strike was declared before the expiration of the 15-day cooling-off

period for unfair labor practice (ULP) strikes, and the strike was staged before the lapse of seven
days from the submission to MOLE of the result of the strike-vote.
9. After the submission of position papers and hearing, Labor Arbiter Ovejera declared the NFSW
strike illegal. The dispositive part of his decision dated February 20, 1982 reads:
Wherefore, premises considered, judgment is hereby rendered:
1. Declaring the strike commenced by NFSW on January 28, 1982, illegal,
2. Directing the Central to resume operations immediately upon receipt hereof;
3. Directing the Central to accept back to work all employees appearing in its payroll as
of January 28, 1982 except those covered by the February 1, 1982 memorandum on
preventive suspension but without prejudice to the said employees' instituting
appropriate actions before this Ministry relative to whatever causes of action they may
have obtained proceeding from said memorandum;
4. Directing the Central to pay effective from the date of resumption of operations the
salaries of those to be placed on preventive suspension as per February 1, 1982
memorandum during their period of preventive suspension; and
5. Directing, in view of the finding that the subject strike is illegal, NFSW, its officers,
members, as well as sympathizers to immediately desist from committing acts that may
impair or impede the milling operations of the Central
The law enforcement authorities are hereby requested to assist in the peaceful
enforcement and implementation of this Decision.
SO ORDERED.
10. On February 26, 1982, the NFSW by passing the NLRC filed the instant Petition for
prohibition alleging that Labor Arbiter Ovejera, CAC and the PC Provincial Commander of Negros
Occidental were threatening to immediately enforce the February 20, 1982 decision which would
violate fundamental rights of the petitioner, and praying that
WHEREFORE, on the foregoing considerations, it is prayed of the Honorable Court that
on the Petition for Preliminary Injunction, an order, after hearing, issue:
1. Restraining implementation or enforcement of the Decision of February 20, 1982;
2. Enjoining respondents to refrain from the threatened acts violative of the rights of
strikers and peaceful picketers;
3. Requiring maintenance of the status quo as of February 20, 1982, until further orders
of the Court;

and on the Main Petition, judgment be rendered after hearing.

1. Declaring the Decision of February 2O, l982 null and void;
2. Making the preliminary injunction permanent;
3. Awarding such other relief as may be just in the premises.
11. Hearing was held, after which the parties submitted their memoranda. No restraining order was
issued.
II ISSUES
The parties have raised a number of issues, including some procedural points. However, considering
their relative importance and the impact of their resolution on ongoing labor disputes in a number of
industry sectors, we have decided in the interest of expediency and dispatch to brush aside
non-substantial items and reduce the remaining issues to but two fundamental ones:
1. Whether the strike declared by NFSW is illegal, the resolution of which mainly depends on the
mandatory or directory character of the cooling-off period and the 7-day strike ban after report to
MOLE of the result of a strike-vote, as prescribed in the Labor Code.
2. Whether under Presidential Decree 851 (13th Month Pay Law), CAC is obliged to give its workers
a 13th month salary in addition to Christmas, milling and amelioration bonuses, the aggregate of
which admittedly exceeds by far the disputed 13th month pay. (See petitioner's memorandum of April
12, 1982, p. 2; CAC memorandum of April 2, 1982, pp. 3-4.) Resolution of this issue requires an
examination of the thrusts and application of PD 851.
III. DISCUSSION
1. Articles 264 and 265 of the Labor Code, insofar as pertinent, read:
Art. 264, Strikes, picketing and lockouts. ...
(c) In cases of bargaining deadlocks, the certified or duly recognized bargaining
representative may file a notice of strike with the Ministry (of Labor and Employment) at
least thirty (30) days before the intended date thereof. In cases of unfair labor practices,
the period of notice shall be shortened tofifteen (15) days; ...
(d) During the cooling-off period, it shall be the duty of the voluntary sttlement. Should
the dispute remain unsettled until the lapse of the requisite number of days from the
mandatory filing of the notice, the labor union may strike or the employer may declare a
lockout.
(f) A decision to declae a strike must be approved by at least two-thirds (2/3) of the total
union membership in the bargaining unit concerened by secret ballots in meetings or
referenda. A decision to declae a lockout must be approved by at least two-thirds (2/3)

of the board of direcotrs of the employer corporation or association or of the partners in

a partnership obtained by secret ballot in a meeting called for the purpose. the decision
shall be valid for the duration of the dispute based on substantially the same grounds
considered when the strike or lockout vote was taken . The Ministry, may at its own
intitiative or upon the request of any affected party, supervise the conduct of the secret
balloting. In every case, the union of the employer shall furnish the Ministry the results
of the voting at least seven (7) days before the intended strike or lockout, subject to the
cooling-off periodherein provided. (Emphasis supplied).
ART. 265. Prohibited activities. It shall be unlawful for any labor organization or
employer to declare a strike or lockout without first having bargained collectively in
accordance with Title VII of this Book or without first having filed the notice required in
the preceding Article or without the necessary strike or lockout vote first having been
obtained and reported to the Ministry.
It shall likewise be unlawful to declare a strike or lockout after assumption of jurisdiction
by the President or the Minister or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases involving the same
grounds for the strike or lockout. (Emphasis supplied.)
(a) Language of the law. The foregoing provisions hardly leave any room for doubt that the
cooling-off period in Art. 264(c) and the 7-day strike ban after the strike-vote report prescribed in Art.
264(f) were meant to be, and should be deemed, mandatory.
When the law says "the labor union may strike" should the dispute "remain unsettled until the lapse of
the requisite number of days (cooling-off period) from the filing of the notice," the unmistakable
implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the
mandatory character of the 7-day strike ban after the report on the strike-vote is manifest in the
provision that "in every case," the union shall furnish the MOLE with the results of the voting "at least
seven (7) days before the intended strike, subject to the (prescribed) cooling-off period." It must be
stressed that the requirements of cooling-off period and 7-day strike ban must both be complied with,
although the labor union may take a strike vote and report the same within the statutory cooling-off
period.
If only the filing of the strike notice and the strike-vote report would be deemed mandatory, but not the
waiting periods so specifically and emphatically prescribed by law, the purposes (hereafter discussed)
for which the filing of the strike notice and strike-vote report is required would not be achieved, as
when a strike is declaredimmediately after a strike notice is served, or when as in the instant case
the strike-vote report is filed with MOLE after the strike had actually commenced Such
interpretation of the law ought not and cannot be countenanced. It would indeed be self-defeating for
the law to imperatively require the filing on a strike notice and strike-vote report without at the same
time making the prescribed waiting periods mandatory.
(b) Purposes of strike notice and strike-vote report. In requiring a strike notice and a cooling-off
period, the avowed intent of the law is to provide an opportunity for mediation and conciliation. It thus
directs the MOLE "to exert all efforts at mediation and conciliation to effect a voluntary settlement"

during the cooling-off period . As applied to the CAC-NFSW dispute regarding the 13th month pay,
MOLE intervention could have possibly induced CAC to provisionally give the 13th month pay in order
to avert great business loss arising from the project strike,without prejudice to the subsequent
resolution of the legal dispute by competent authorities; or mediation/conciliation could have
convinced NFSW to at least postpone the intended strike so as to avoid great waste and loss to the
sugar central, the sugar planters and the sugar workers themselves, if the strike would coincide with
the mining season.
So, too, the 7-day strike-vote report is not without a purpose. As pointed out by the Solicitor General

Many disastrous strikes have been staged in the past based merely on the insistence of
minority groups within the union. The submission of the report gives assurance that a
strike vote has been taken and that, if the report concerning it is false, the majority of
the members can take appropriate remedy before it is too late. (Answer of public
respondents, pp. 17-18.)
If the purpose of the required strike notice and strike-vote report are to be achieved, the periods
prescribed for their attainment must, as aforesaid, be deemed mandatory.,
... when a fair interpretation of the statute, which directs acts or proceedings to be done
in a certain way, shows the legislature intended a compliance with such provision to be
essential to the validity of the act or proceeding, or when some antecedent and
prerequisite conditions must exist prior to the exercise of power or must be performed
before certain other powers can be exercised, the statute must be regarded as
mandatory. So it has been held that, when a statute is founded on public policy [such as
the policy to encourage voluntary settlement of disputes without resorting to strikes],
those to whom it applies should not be permitted to waive its provisions. (82 C.J.S. 873874. Emphasis supplied.)
(c) Waiting period after strike notice and strike-vote report, valid regulation of right to strike. To
quote Justice Jackson in International Union vs. Wisconsin Employment Relations Board, 336 U.S.
245, at 259
The right to strike, because of its more serious impact upon the public interest, is more
vulnerable to regulation than the right to organize and select representatives for lawful
purposes of collective bargaining ...
The cooling-off period and the 7-day strike ban after the filing of a strike- vote report, as prescribed in
Art. 264 of the Labor Code, are reasonable restrictions and their imposition is essential to attain the
legitimate policy objectives embodied in the law. We hold that they constitute a valid exercise of the
police power of the state.
(d) State policy on amicable settlement of criminal liability. Petitioner contends that since the noncompliance (with PD 851) imputed to CAC is an unfair labor practice which is an offense against the

state, the cooling-off period provided in the Labor Code would not apply, as it does not apply to ULP
strikes. It is argued that mediation or conciliation in order to settle a criminal offense is not allowed.
In the first place, it is at best unclear whether the refusal of CAC to give a 13th month pay to NFSW
constitutes a criminal act. Under Sec. 9 of the Rules and regulations Implementing Presidential
Decree No. 851
Non-payment of the thirteenth-month pay provided by the Decree and these rules shall
be treated as money claims cases and shall be processed in accordance with the Rules
Implementing the Labor Code of the Philippines and the Rules of the National Labor
Relations Commission.
Secondly, the possible dispute settlement, either permanent or temporary, could very
well be along legally permissible lines, as indicated in (b) above or assume the form of
measures designed to abort the intended strike, rather than compromise criminal
liability, if any. Finally, amicable settlement of criminal liability is not inexorably forbidden
by law. Such settlement is valid when the law itself clearly authorizes it. In the case of a
dispute on the payment of the 13th month pay, we are not prepared to say that its
voluntary settlement is not authorized by the terms of Art. 264(e) of the Labor Code,
which makes it the duty of the MOLE to exert all efforts at mediation and conciliation to
effect a voluntary settlement of labor disputes.
(e) NFSW strike is illegal. The NFSW declared the strike six (6) days after filing a
strike notice, i.e., before the lapse of the mandatory cooling-off period. It also failed to
file with the MOLE beforelaunching the strike a report on the strike-vote, when it should
have filed such report "at least seven (7) days before the intended strike." Under the
circumstances, we are perforce constrained to conclude that the strike staged by
petitioner is not in conformity with law. This conclusion makes it unnecessary for us to
determine whether the pendency of an arbitration case against CAC on the same issue
of payment of 13th month pay [R.A.B No. 512-81, Regional Arbitration Branch No. VI-A,
NLRC, Bacolod City, in which the National Congress of Unions in the Sugar Industry of
the Philippines (NACUSIP) and a number of CAC workers are the complainants, with
NFSW as Intervenor seeking the dismissal of the arbitration case as regards unnamed
CAC rank and file employees] has rendered illegal the above strike under Art. 265 of the
Labor Code which provides:
It shall likewise be unlawful to declare a strike or lockout after assumption of jurisdiction
by the President or the Minister, or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases involving the same
grounds for the strike or lockout. (Emphasis supplied.)
(2) The Second Issue. At bottom, the NFSW strike arose from a dispute on the meaning and
application of PD 851, with NFSW claiming entitlement to a 13th month pay on top of bonuses given
by CAC to its workers, as against the diametrically opposite stance of CAC. Since the strike was just
an offshoot of the said dispute, a simple decision on the legality or illegality of the strike would not
spell the end of the NFSW-CAC labor dispute. And considering further that there are other disputes

and strikes actual and impending involving the interpretation and application of PD 851, it is
important for this Court to definitively resolve the problem: whether under PD 851, CAC is obliged to
give its workers a 13th month salary in addition to Christmas, milling and amelioration bonuses
stipulated in a collective bargaining agreement amounting to more than a month's pay.
Keenly sensitive to the needs of the workingmen, yet mindful of the mounting production cost that are
the woe of capital which provides employment to labor, President Ferdinand E. Marcos issued
Presidential Decree No. 851 on 16 December 1975. Thereunder, "all employers are hereby required
to pay salary of not more than all their employees receiving a basic P1,000 a month, regardless of the
nature of their employment, a 13th month pay not later than December 24 of every year." Exempted
from the obligation however are:
Employers already paying their employees a 13th month pay or its equivalent ...
(Section 2.)
The evident intention of the law, as revealed by the law itself, was to grant an additional income in the
form of a 13th month pay to employees not already receiving the same. Otherwise put, the intention
was to grant some relief not to all workers but only to the unfortunate ones not actually paid a
13th month salary or what amounts to it, by whatever name called; but it was not envisioned that a
double burden would be imposed on the employer already paying his employees a 13th month pay or
its equivalent whether out of pure generosity or on the basis of a binding agreement and, in the
latter ease, regardless of the conditional character of the grant (such as making the payment
dependent on profit), so long as there is actual payment. Otherwise, what was conceived to be a 13th
month salary would in effect become a 14th or possibly 15th month pay.
This view is justified by the law itself which makes no distinction in the grant of exemption:
"Employers already paying their employees a 13th month pay or its equivalent are not covered by this
Decree." (P.D. 851.)
The Rules Implementing P.D. 851 issued by MOLE immediately after the adoption of said law
reinforce this stand. Under Section 3(e) thereof
The term "its equivalent" ... shall include Christmas bonus, mid-year bonus, profitsharing payments and other cash bonuses amounting to not less than 1/12th of the
basic salary but shall not include cash and stock dividends, cost of living allowances
and all other allowances regularly enjoyed by the employee, as well as non-monetary
benefits. Where an employer pays less than 1/12th of the employee's basic salary, the
employer shall pay the difference." (Italics supplied.)
Having been issued by the agency charged with the implementation of PD 851 as its
contemporaneous interpretation of the law, the quoted rule should be accorded great weight.
Pragmatic considerations also weigh heavily in favor of crediting both voluntary and contractual
bonuses for the purpose of determining liability for the 13th month pay. To require employers (already
giving their employees a 13th month salary or its equivalent) to give a second 13th month pay would
be unfair and productive of undesirable results. To the employer who had acceded and is already

bound to give bonuses to his employees, the additional burden of a 13th month pay would amount to
a penalty for his munificence or liberality. The probable reaction of one so circumstance would be to
withdraw the bonuses or resist further voluntary grants for fear that if and when a law is passed giving
the same benefits, his prior concessions might not be given due credit; and this negative attitude
would have an adverse impact on the employees.
In the case at bar, the NFSW-CAC collective bargaining agreement provides for the grant to CAC
workers of Christmas bonus, milling bonus and amelioration bonus, the aggregate of which is very
much more than a worker's monthly pay. When a dispute arose last year as to whether CAC workers
receiving the stipulated bonuses would additionally be entitled to a 13th month pay, NFSW and CAC
concluded a compromise agreement by which they
agree(d) to abide by the final decision of the Supreme Court in any case involving the
13th Month Pay Law if it is clearly held that the employer is liable to pay a 13th month
pay separate and distinct from the bonuses already given.
When this agreement was forged on November 30,1981, the original decision dismissing the petition
in the aforecited Marcopper case had already been promulgated by this Court. On the votes of only 7
Justices, including the distinguished Chief Justice, the petition of Marcopper Mining Corp. seeking to
annul the decision of Labor Deputy Minister Amado Inciong granting a 13th month pay to Marcopper
employees (in addition to mid- year and Christmas bonuses under a CBA) had been dismissed. But a
motion for reconsideration filed by Marcopper was pending as of November 30, 1981. In December
1981, the original decision was affirmed when this Court finally denied the motion for reconsideration.
But the resolution of denial was supported by the votes of only 5 Justices. The Marcopper decision is
therefore a Court decision but without the necessary eight votes to be doctrinal. This being so, it
cannot be said that the Marcopper decision "clearly held" that "the employer is liable to pay a 13th
month pay separate and distinct from the bonuses already given," within the meaning of the NFSWCAC compromise agreement. At any rate, in view of the rulings made herein, NFSW cannot insist on
its claim that its members are entitled to a 13th month pay in addition to the bonuses already paid by
CAC. WHEREFORE, the petition is dismissed for lack of merit. No costs.
SO ORDERED.
Aquino, Guerrero, Escolin, Vasquez, Relova and Gutierrez, JJ., concur.
Concepcion, J., is on leave.
Teehankee, J., concurs in the result.

I.

Lack of applicable law

G.R. No. L-30642 April 30, 1985

PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and
NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO, PEDRO S. FLORESCA, JR.,
CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S. FLORESCA and CARMEN S.
FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor children
LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ and
TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor children
JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor children
EDNA, GEORGE and LARRY III, all surnamed VILLAR;

DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her minor
children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all surnamed
LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor children
JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA, petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of Branch XIII,
Court of First Instance of Manila, respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.

MAKASIAR, J.:
This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII, dated
December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of
jurisdiction.
Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter
referred to as Philex), who, while working at its copper mines underground operations at Tuba,
Benguet on June 28, 1967, died as a result of the cave-in that buried them in the tunnels of the mine.
Specifically, the complaint alleges that Philex, in violation of government rules and regulations,
negligently and deliberately failed to take the required precautions for the protection of the lives of its
men working underground. Portion of the complaint reads:

xxx xxx xxx

9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with gross
and reckless negligence and imprudence and deliberate failure to take the required
precautions for the due protection of the lives of its men working underground at the
time, and in utter violation of the laws and the rules and regulations duly promulgated by
the Government pursuant thereto, allowed great amount of water and mud to
accumulate in an open pit area at the mine above Block 43-S-1 which seeped through
and saturated the 600 ft. column of broken ore and rock below it, thereby exerting
tremendous pressure on the working spaces at its 4300 level, with the result that, on the
said date, at about 4 o'clock in the afternoon, with the collapse of all underground
supports due to such enormous pressure, approximately 500,000 cubic feet of broken
ores rocks, mud and water, accompanied by surface boulders, blasted through the

tunnels and flowed out and filled in, in a matter of approximately five (5) minutes, the
underground workings, ripped timber supports and carried off materials, machines and
equipment which blocked all avenues of exit, thereby trapping within its tunnels of all its
men above referred to, including those named in the next preceding paragraph,
represented by the plaintiffs herein;
10. That out of the 48 mine workers who were then working at defendant PHILEX's
mine on the said date, five (5) were able to escape from the terrifying holocaust; 22
were rescued within the next 7 days; and the rest, 21 in number, including those
referred to in paragraph 7 hereinabove, were left mercilessly to their fate,
notwithstanding the fact that up to then, a great many of them were still alive, entombed
in the tunnels of the mine, but were not rescued due to defendant PHILEX's decision to
abandon rescue operations, in utter disregard of its bounden legal and moral duties in
the premises;
xxx xxx xxx
13. That defendant PHILEX not only violated the law and the rules and regulations duly
promulgated by the duly constituted authorities as set out by the Special Committee
above referred to, in their Report of investigation, pages 7-13, Annex 'B' hereof, but also
failed completely to provide its men working underground the necessary security for the
protection of their lives notwithstanding the fact that it had vast financial resources, it
having made, during the year 1966 alone, a total operating income of P 38,220,254.00,
or net earnings, after taxes of P19,117,394.00, as per its llth Annual Report for the year
ended December 31, 1966, and with aggregate assets totalling P 45,794,103.00 as of
December 31, 1966;
xxx xxx xxx
(pp. 42-44, rec.)
A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of
petitioners based on an industrial accident are covered by the provisions of the Workmen's
Compensation Act (Act 3428, as amended by RA 772) and that the former Court of First Instance has
no jurisdiction over the case. Petitioners filed an opposition dated May 27, 1968 to the said motion to
dismiss claiming that the causes of action are not based on the provisions of the Workmen's
Compensation Act but on the provisions of the Civil Code allowing the award of actual, moral and
exemplary damages, particularly:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre- existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict.

(b) Art. 1173The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows bad
faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply.
Art. 2201. x x x x x x x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for
all damages which may be reasonably attributed to the non-performance of the
obligation.
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted
with gross negligence.
After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27,
1968 dismissing the case on the ground that it falls within the exclusive jurisdiction of the Workmen's
Compensation Commission. On petitioners' motion for reconsideration of the said order, respondent
Judge, on September 23, 1968, reconsidered and set aside his order of June 27, 1968 and allowed
Philex to file an answer to the complaint. Philex moved to reconsider the aforesaid order which was
opposed by petitioners.
On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that in
accordance with the established jurisprudence, the Workmen's Compensation Commission has
exclusive original jurisdiction over damage or compensation claims for work-connected deaths or
injuries of workmen or employees, irrespective of whether or not the employer was negligent, adding
that if the employer's negligence results in work-connected deaths or injuries, the employer shall,
pursuant to Section 4-A of the Workmen's Compensation Act, pay additional compensation equal to
50% of the compensation fixed in the Act.
Petitioners thus filed the present petition.
In their brief, petitioners raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS- PETITIONERS'
COMPLAINT FOR LACK OF JURISDICTION.
II
THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR DISTINCTION
BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE AND CLAIMS FOR
COMPENSATION UNDER THE WORKMEN'S COMPENSATION ACT.
A

In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause of
action since the complaint is based on the provisions of the Civil Code on damages, particularly
Articles 2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's Compensation
Act. They point out that the complaint alleges gross and brazen negligence on the part of Philex in
failing to take the necessary security for the protection of the lives of its employees working
underground. They also assert that since Philex opted to file a motion to dismiss in the court a quo,
the allegations in their complaint including those contained in the annexes are deemed admitted.
In the second assignment of error, petitioners asseverate that respondent Judge failed to see the
distinction between the claims for compensation under the Workmen's Compensation Act and the
claims for damages based on gross negligence of Philex under the Civil Code. They point out that
workmen's compensation refers to liability for compensation for loss resulting from injury, disability or
death of the working man through industrial accident or disease, without regard to the fault or
negligence of the employer, while the claim for damages under the Civil Code which petitioners
pursued in the regular court, refers to the employer's liability for reckless and wanton negligence
resulting in the death of the employees and for which the regular court has jurisdiction to adjudicate
the same.
On the other hand, Philex asserts that work-connected injuries are compensable exclusively under
the provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read:
SEC. 5. Exclusive right to compensation.The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil Code
and other laws because of said injury ...
SEC. 46. Jurisdiction. The Workmen's Compensation Commissioner shall have
exclusive jurisdiction to hear and decide claims for compensation under the Workmen's
Compensation Act, subject to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that "all
claims of workmen against their employer for damages due to accident suffered in the course of
employment shall be investigated and adjudicated by the Workmen's Compensation Commission,"
subject to appeal to the Supreme Court.
Philex maintains that the fact that an employer was negligent, does not remove the case from the
exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A of
the Act provides an additional compensation in case the employer fails to comply with the
requirements of safety as imposed by law to prevent accidents. In fact, it points out that Philex
voluntarily paid the compensation due the petitioners and all the payments have been accepted in
behalf of the deceased miners, except the heirs of Nazarito Floresca who insisted that they are
entitled to a greater amount of damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara,
now President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel and

Assistant General Manager of the GSIS Legal Affairs Department, and Commissioner on Elections,
formerly UP Law Center Director Froilan Bacungan, appeared as amici curiae and thereafter,
submitted their respective memoranda.
The issue to be resolved as WE stated in the resolution of November 26, 1976, is:
Whether the action of an injured employee or worker or that of his heirs in case of his
death under the Workmen's Compensation Act is exclusive, selective or cumulative, that
is to say, whether his or his heirs' action is exclusively restricted to seeking the limited
compensation provided under the Workmen's Compensation Act or whether they have a
right of selection or choice of action between availing of the worker's right under the
Workmen's Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and/or exemplary) from the employer by virtue of
negligence (or fault) of the employer or of his other employees or whether they may
avail cumulatively of both actions, i.e., collect the limited compensation under the
Workmen's Compensation Act and sue in addition for damages in the regular courts.
There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee or
worker, or the heirs in case of his death, may initiate a complaint to recover damages (not
compensation under the Workmen's Compensation Act) with the regular court on the basis of
negligence of an employer pursuant to the Civil Code provisions. Atty. Angara believes otherwise. He
submits that the remedy of an injured employee for work-connected injury or accident is exclusive in
accordance with Section 5 of the Workmen's Compensation Act, while Atty. Bacungan's position is
that the action is selective. He opines that the heirs of the employee in case of his death have a right
of choice to avail themselves of the benefits provided under the Workmen's Compensation Act or to
sue in the regular court under the Civil Code for higher damages from the employer by virtue of
negligence of the latter. Atty. Bocobo's stand is the same as that of Atty. Bacungan and adds that
once the heirs elect the remedy provided for under the Act, they are no longer entitled to avail
themselves of the remedy provided for under the Civil Code by filing an action for higher damages in
the regular court, and vice versa.
On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to
dismiss on the ground that they have amicably settled their claim with respondent Philex. In the
resolution of September 7, 1978, WE dismissed the petition only insofar as the aforesaid petitioners
are connected, it appearing that there are other petitioners in this case.
WE hold that the former Court of First Instance has jurisdiction to try the case,
It should be underscored that petitioners' complaint is not for compensation based on the Workmen's
Compensation Act but a complaint for damages (actual, exemplary and moral) in the total amount of
eight hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not invoke the provisions of
the Workmen's Compensation Act to entitle them to compensation thereunder. In fact, no allegation
appeared in the complaint that the employees died from accident arising out of and in the course of
their employments. The complaint instead alleges gross and reckless negligence and deliberate
failure on the part of Philex to protect the lives of its workers as a consequence of which a cave-in
occurred resulting in the death of the employees working underground. Settled is the rule that in

ascertaining whether or not the cause of action is in the nature of workmen's compensation claim or a
claim for damages pursuant to the provisions of the Civil Code, the test is the averments or
allegations in the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased employees a contractual
relationship. The alleged gross and reckless negligence and deliberate failure that amount to bad
faith on the part of Philex, constitute a breach of contract for which it may be held liable for damages.
The provisions of the Civil Code on cases of breach of contract when there is fraud or bad faith, read:
Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if
the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner.
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is able shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as
assessed by the court.
The rationale in awarding compensation under the Workmen's Compensation Act differs from that in
giving damages under the Civil Code. The compensation acts are based on a theory of compensation
distinct from the existing theories of damages, payments under the acts being made as compensation
and not as damages (99 C.J.S. 53). Compensation is given to mitigate the harshness and insecurity
of industrial life for the workman and his family. Hence, an employer is liable whether negligence
exists or not since liability is created by law. Recovery under the Act is not based on any theory of
actionable wrong on the part of the employer (99 C.J.S. 36).
In other words, under the compensation acts, the employer is liable to pay compensation benefits for
loss of income, as long as the death, sickness or injury is work-connected or work-aggravated, even if
the death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil. 689). On the
other hand, damages are awarded to one as a vindication of the wrongful invasion of his rights. It is
the indemnity recoverable by a person who has sustained injury either in his person, property or
relative rights, through the act or default of another (25 C.J.S. 452).
The claimant for damages under the Civil Code has the burden of proving the causal relation between
the defendant's negligence and the resulting injury as well as the damages suffered. While under the
Workmen's Compensation Act, there is a presumption in favor of the deceased or injured employee
that the death or injury is work-connected or work-aggravated; and the employer has the burden to
prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551; Maria
Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228).

The claim of petitioners that the case is not cognizable by the Workmen's Compensation Commission
then, now Employees Compensation Commission, is strengthened by the fact that unlike in the Civil
Code, the Workmen's Compensation Act did not contain any provision for an award of actual, moral
and exemplary damages. What the Act provided was merely the right of the heirs to claim limited
compensation for the death in the amount of six thousand (P6,000.00) pesos plus burial expenses of
two hundred (P200.00) pesos, and medical expenses when incurred (Sections 8, 12 and 13,
Workmen's Compensation Act), and an additional compensation of only 50% if the complaint alleges
failure on the part of the employer to "install and maintain safety appliances or to take other
precautions for the prevention of accident or occupational disease" (Section 4-A, Ibid.). In the case at
bar, the amount sought to be recovered is over and above that which was provided under the
Workmen's Compensation Act and which cannot be granted by the Commission.
Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an
employee who suffered an accident not due to the facilities or lack of facilities in the industry of his
employer but caused by factors outside the industrial plant of his employer. Under the Civil Code, the
liability of the employer, depends on breach of contract or tort. The Workmen's Compensation Act
was specifically enacted to afford protection to the employees or workmen. It is a social legislation
designed to give relief to the workman who has been the victim of an accident causing his death or
ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379).
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the worker's right under
the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher
damages (actual, moral and exemplary) from the employers by virtue of that negligence or fault of the
employers or whether they may avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmen's Compensation Act and sue in addition for damages in the regular
courts.
In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32 SCRA 442, ruled
that an injured worker has a choice of either to recover from the employer the fixed amounts set by
the Workmen's Compensation Act or to prosecute an ordinary civil action against the tortfeasor for
higher damages but he cannot pursue both courses of action simultaneously.
In Pacaa WE said:
In the analogous case of Esguerra vs. Munoz Palma, involving the application of
Section 6 of the Workmen's Compensation Act on the injured workers' right to sue thirdparty tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking for the
Court, pointed out that the injured worker has the choice of remedies but cannot pursue
both courses of action simultaneously and thus balanced the relative advantage of
recourse under the Workmen's Compensation Act as against an ordinary action.
As applied to this case, petitioner Esguerra cannot maintain his action for damages
against the respondents (defendants below), because he has elected to seek
compensation under the Workmen's Compensation Law, and his claim (case No. 44549
of the Compensation Commission) was being processed at the time he filed this action

in the Court of First Instance. It is argued for petitioner that as the damages recoverable
under the Civil Code are much more extensive than the amounts that may be awarded
under the Workmen's Compensation Act, they should not be deemed incompatible. As
already indicated, the injured laborer was initially free to choose either to recover from
the employer the fixed amounts set by the Compensation Law or else, to prosecute an
ordinary civil action against the tortfeasor for higher damages. While perhaps not as
profitable, the smaller indemnity obtainable by the first course is balanced by the
claimant's being relieved of the burden of proving the causal connection between the
defendant's negligence and the resulting injury, and of having to establish the extent of
the damage suffered; issues that are apt to be troublesome to establish satisfactorily.
Having staked his fortunes on a particular remedy, petitioner is precluded from pursuing
the alternate course, at least until the prior claim is rejected by the Compensation
Commission. Anyway, under the proviso of Section 6 aforequoted, if the employer
Franklin Baker Company recovers, by derivative action against the alleged tortfeasors,
a sum greater than the compensation he may have paid the herein petitioner, the
excess accrues to the latter.
Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to third-party
tortfeasor, said rule should likewise apply to the employer-tortfeasor.
Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been
dismissed in the resolution of September 7, 1978 in view of the amicable settlement reached by
Philex and the said heirs.
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14,
1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino Martinez submitted notices and claims for
compensation to the Regional Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be
paid in installments (pp. 106-107, rec.). Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in the lower court, but they
set up the defense that the claims were filed under the Workmen's Compensation Act before they
learned of the official report of the committee created to investigate the accident which established
the criminal negligence and violation of law by Philex, and which report was forwarded by the Director
of Mines to the then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only (p. 76,
rec.).
WE hold that although the other petitioners had received the benefits under the Workmen's
Compensation Act, such may not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmen's Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake
of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be
remanded to the lower court for further proceedings. However, should the petitioners be successful in

their bid before the lower court, the payments made under the Workmen's Compensation Act should
be deducted from the damages that may be decreed in their favor.
B
Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case.
The Court merely applies and gives effect to the constitutional guarantees of social justice then
secured by Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now by
Sections 6, 7, and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE POLICIES of
the 1973 Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201,
2216, 2231 and 2232 of the New Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the well-being and economic security of
all the people should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and between
labor and capital in industry and in agriculture. The State may provide for compulsory
arbitration (Art. XIV).
The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity,
welfare, and security of all the people "... regulate the use ... and disposition of private property and
equitably diffuse property ownership and profits "establish, maintain and ensure adequate social
services in, the field of education, health, housing, employment, welfare and social security to
guarantee the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973
Constitution); "... afford protection to labor, ... and regulate the relations between workers and
employers ..., and assure the rights of workers to ... just and humane conditions of work"(Sec. 9, Art.
II, 1973 Constitution, emphasis supplied).
The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article 11 of
the 1973 Constitution and re-stated as a declaration of basic policy in Article 3 of the New Labor
Code, thus:
Art. 3. Declaration of basic policy.The State shall afford protection to labor, promote
full employment, ensure equal work opportunities regardless of sex, race or creed,
and regulate the relations between workers and employers. The State shall assure the
rights of workers to self-organization, collective bargaining, security of tenure, and just
and humane conditions of work. (emphasis supplied).
The aforestated constitutional principles as implemented by the aforementioned articles of the New
Civil Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New Labor
Code. Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No. 772 on
June 20, 1952), predecessor of Article 173 of the New Labor Code, has been superseded by the
aforestated provisions of the New Civil Code, a subsequent law, which took effect on August 30,

1950, which obey the constitutional mandates of social justice enhancing as they do the rights of the
workers as against their employers. Article 173 of the New Labor Code seems to diminish the rights
of the workers and therefore collides with the social justice guarantee of the Constitution and the
liberal provisions of the New Civil Code.
The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973 Constitution
are statements of legal principles to be applied and enforced by the courts. Mr. Justice Robert
Jackson in the case of West Virginia State Board of Education vs. Barnette, with characteristic
eloquence, enunciated:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on
the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis supplied).
In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the New
Labor Code and the Civil Code direct that the doubts should be resolved in favor of the workers and
employees.
Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as
amended, promulgated on May 1, 1974, but which took effect six months thereafter, provides that "all
doubts in the implementation and interpretation of the provisions of this Code, including its
implementing rules and regulations, shall be resolved in favor of labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of laws, it
is presumed that the law-making body intended right and justice to prevail. "
More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all labor
legislation and all labor contracts shall be construed in favor of the safety and decent living of the
laborer."
Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the Workmen's
Compensation Act provided:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude
all other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws,
because of said injury (emphasis supplied).
Employers contracting laborecsrs in the Philippine Islands for work outside the same
may stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in and

during the performance of the duties of the employment; and all service contracts made
in the manner prescribed in this section shall be presumed to include such agreement.
Only the second paragraph of Section 5 of the Workmen's Compensation Act No. 3428, was
amended by Commonwealth Act No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude
all other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws,
because of said injury.
Employers contracting laborers in the Philippine Islands for work outside the same shall
stipulate with such laborers that the remedies prescribed by this Act shall apply to
injuries received outside the Island through accidents happening in and during the
performance of the duties of the employment. Such stipulation shall not prejudice the
right of the laborers to the benefits of the Workmen's Compensation Law of the place
where the accident occurs, should such law be more favorable to them (As amended by
section 5 of Republic Act No. 772).
Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable provisions
of the New Civil Code, because said Article 173 provides:
Art. 173. Exclusiveness of liability.- Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Commonwealth Act Numbered One hundred eighty- six, as amended,
Commonwealth Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred Sixty-four, as amended, and other laws whose benefits are
administered by the System during the period of such payment for the same disability or
death, and conversely (emphasis supplied).
As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the
Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No. 610,
as amended, R.A. No. 4864, as amended, and all other laws whose benefits are administered by the
System (referring to the GSIS or SSS).
Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New Labor
Code does not even remotely, much less expressly, repeal the New Civil Code provisions heretofore
quoted.
It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence, is
not barred by Article 173 of the New Labor Code. And the damages recoverable under the New Civil

Code are not administered by the System provided for by the New Labor Code, which defines the
"System" as referring to the Government Service Insurance System or the Social Security System
(Art. 167 [c], [d] and [e] of the New Labor Code).
Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of the
law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines.
The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or
interpreting the laws or the Constitution form part of this jurisdiction's legal system.
These decisions, although in themselves not laws, constitute evidence of what the laws
mean. The application or interpretation placed by the Court upon a law is part of the law
as of the date of the enactment of the said law since the Court's application or
interpretation merely establishes the contemporaneous legislative intent that the
construed law purports to carry into effect" (65 SCRA 270, 272-273 [1975]).
WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute itself
(Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763).
The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it was
amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in favor of
the deceased, ailing or injured employee to the compensation provided for therein. Said Section 5
was not accorded controlling application by the Supreme Court in the 1970 case of Pacana vs. Cebu
Autobus Company (32 SCRA 442) when WE ruled that an injured worker has a choice of either to
recover from the employer the fixed amount set by the Workmen's Compensation Act or to prosecute
an ordinary civil action against the tortfeasor for greater damages; but he cannot pursue both courses
of action simultaneously. Said Pacana case penned by Mr. Justice Teehankee, applied Article 1711 of
the Civil Code as against the Workmen's Compensation Act, reiterating the 1969 ruling in the case of
Valencia vs. Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 case of Esguerra vs.
Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. Reyes. Said Pacana case was
concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar, Castro, Fernando and Villamor.
Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first
paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer,
neither expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation Act
did, with greater reason said Article 173 must be subject to the same interpretation adopted in the
cases of Pacana, Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3)
cases is faithful to and advances the social justice guarantees enshrined in both the 1935 and 1973
Constitutions.

It should be stressed likewise that there is no similar provision on social justice in the American
Federal Constitution, nor in the various state constitutions of the American Union. Consequently, the
restrictive nature of the American decisions on the Workmen's Compensation Act cannot limit the
range and compass of OUR interpretation of our own laws, especially Article 1711 of the New Civil
Code, vis-a-vis Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6
of Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the Declaration of
Principles and State Policies of Article II of the 1973 Constitution.
The dissent seems to subordinate the life of the laborer to the property rights of the employer. The
right to life is guaranteed specifically by the due process clause of the Constitution. To relieve the
employer from liability for the death of his workers arising from his gross or wanton fault or failure to
provide safety devices for the protection of his employees or workers against the dangers which are
inherent in underground mining, is to deprive the deceased worker and his heirs of the right to
recover indemnity for the loss of the life of the worker and the consequent loss to his family without
due process of law. The dissent in effect condones and therefore encourages such gross or wanton
neglect on the part of the employer to comply with his legal obligation to provide safety measures for
the protection of the life, limb and health of his worker. Even from the moral viewpoint alone, such
attitude is un-Christian.
It is therefore patent that giving effect to the social justice guarantees of the Constitution, as
implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making,
but is rendering obedience to the mandates of the fundamental law and the implementing legislation
aforementioned.
The Court, to repeat, is not legislating in the instant case.
It is axiomatic that no ordinary statute can override a constitutional provision.
The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor
Code subvert the rights of the petitioners as surviving heirs of the deceased mining employees.
Section 5 of the Workmen's Compensation Act and Article 173 of the New Labor Code are
retrogressive; because they are a throwback to the obsolete laissez-faire doctrine of Adam Smith
enunciated in 1776 in his treatise Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964),
which has been discarded soon after the close of the 18th century due to the Industrial Revolution
that generated the machines and other mechanical devices (beginning with Eli Whitney's cotton gin of
1793 and Robert Fulton's steamboat of 1807) for production and transportation which are dangerous
to life, limb and health. The old socio-political-economic philosophy of live-and-let-live is now
superdesed by the benign Christian shibboleth of live-and-help others to live. Those who profess to
be Christians should not adhere to Cain's selfish affirmation that he is not his brother's keeper. In this
our civilization, each one of us is our brother's keeper. No man is an island. To assert otherwise is to
be as atavistic and ante-deluvian as the 1837 case of Prisley vs. Fowler (3 MN 1,150 reprint 1030)
invoked by the dissent, The Prisley case was decided in 1837 during the era of economic royalists
and robber barons of America. Only ruthless, unfeeling capitalistics and egoistic reactionaries
continue to pay obeisance to such un-Christian doctrine. The Prisley rule humiliates man and
debases him; because the decision derisively refers to the lowly worker as "servant" and utilizes with
aristocratic arrogance "master" for "employer." It robs man of his inherent dignity and dehumanizes

him. To stress this affront to human dignity, WE only have to restate the quotation from Prisley, thus:
"The mere relation of the master and the servant never can imply an obligation on the part of the
master to take more care of the servant than he may reasonably be expected to do himself." This is
the very selfish doctrine that provoked the American Civil War which generated so much hatred and
drew so much precious blood on American plains and valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law insures
man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth; its spirit
giveth life."
C
It is curious that the dissenting opinion clings to the myth that the courts cannot legislate.
That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge or
court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. "
Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that in certain
instances, the court, in the language of Justice Holmes, "do and must legislate" to fill in the gaps in
the law; because the mind of the legislator, like all human beings, is finite and therefore cannot
envisage all possible cases to which the law may apply Nor has the human mind the infinite capacity
to anticipate all situations.
But about two centuries before Article 9 of the New Civil Code, the founding fathers of the American
Constitution foresaw and recognized the eventuality that the courts may have to legislate to supply
the omissions or to clarify the ambiguities in the American Constitution and the statutes.
'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but denies
that the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The Federalist,
Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that the court is
even independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335 US 538).
Many of the great expounders of the American Constitution likewise share the same view. Chief
Justice Marshall pronounced: "It is emphatically the province and duty of the Judicial department to
say what the law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief Justice
Hughes when he said that "the Constitution is what the judge says it is (Address on May 3, 1907,
quoted by President Franklin Delano Roosevelt on March 9, 1937). This was reiterated by Justice
Cardozo who pronounced that "No doubt the limits for the judge are narrower. He legislates only
between gaps. He fills the open spaces in the law. " (The Nature of the Judicial Process, p. 113). In
the language of Chief Justice Harlan F. Stone, "The only limit to the judicial legislation is the restraint
of the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79), which view is also entertained by
Justice Frankfurter and Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts
breathe life, feeble or strong, into the inert pages of the Constitution and all statute books."
It should be stressed that the liability of the employer under Section 5 of the Workmen's
Compensation Act or Article 173 of the New Labor Code is limited to death, ailment or injury caused

by the nature of the work, without any fault on the part of the employers. It is correctly termed no fault
liability. Section 5 of the Workmen's Compensation Act, as amended, or Article 173 of the New Labor
Code, does not cover the tortious liability of the employer occasioned by his fault or culpable
negligence in failing to provide the safety devices required by the law for the protection of the life, limb
and health of the workers. Under either Section 5 or Article 173, the employer remains liable to pay
compensation benefits to the employee whose death, ailment or injury is work-connected, even if the
employer has faithfully and diligently furnished all the safety measures and contrivances decreed by
the law to protect the employee.
The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr. Justice
Cardozo, "the law has outgrown its primitive stage of formalism when the precise word was the
sovereign talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo, The
Nature of the Judicial Process 100). Justice Cardozo warned that: "Sometimes the conservatism of
judges has threatened for an interval to rob the legislation of its efficacy. ... Precedents established in
those items exert an unhappy influence even now" (citing Pound, Common Law and Legislation 21
Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although with a
cautionary undertone: "that judges do and must legislate, but they can do so only interstitially they are
confined from molar to molecular motions" (Southern Pacific Company vs. Jensen, 244 US 204
1917). And in the subsequent case of Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845,
852- 853), Justice Holmes pronounced:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. x x x. When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain latitude or
our government could not go on.
To make a rule of conduct applicable to an individual who but for such action would be
free from it is to legislate yet it is what the judges do whenever they determine which of
two competing principles of policy shall prevail.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into waterlight
compartments, were it ever so desirable to do so, which I am far from believing that it is,
or that the Constitution requires.
True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly
concede that in certain cases judges do legislate. They criticize the assumption by the courts of such
law-making power as dangerous for it may degenerate into Judicial tyranny. They include Blackstone,
Jeremy Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald
Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal

commentators, who either deny the power of the courts to legislate in-between gaps of the law, or
decry the exercise of such power, have not pointed to examples of the exercise by the courts of such
law-making authority in the interpretation and application of the laws in specific cases that gave rise
to judicial tyranny or oppression or that such judicial legislation has not protected public interest or
individual welfare, particularly the lowly workers or the underprivileged.
On the other hand, there are numerous decisions interpreting the Bill of Rights and statutory
enactments expanding the scope of such provisions to protect human rights. Foremost among them
is the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372 US
335), Escubedo vs. Illinois (378 US 478), which guaranteed the accused under custodial investigation
his rights to remain silent and to counsel and to be informed of such rights as even as it protects him
against the use of force or intimidation to extort confession from him. These rights are not found in the
American Bill of Rights. These rights are now institutionalized in Section 20, Article IV of the 1973
Constitution. Only the peace-and-order adherents were critical of the activism of the American
Supreme Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for purposes of the double jeopardy provision was developed
by American judicial decisions, not by amendment to the Bill of Rights on double jeopardy (see
Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial decisions have been restated in Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure, as well as in Section 9 of
Rule 117 of the 1964 Revised Rules of Court. In both provisions, the second offense is the same as
the first offense if the second offense is an attempt to commit the first or frustration thereof or
necessarily includes or is necessarily included in the first offense.
The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also developed
by judicial decisions in the United States and in the Philippines even before people vs. Ylagan (58
Phil. 851-853).
Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537)
as securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of
Brown vs. Maryland Board of Education (349 US 294), holding that the equal protection clause
means that the Negroes are entitled to attend the same schools attended by the whites-equal
facilities in the same school-which was extended to public parks and public buses.
De-segregation, not segregation, is now the governing principle.
Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46
Phil. 440) by a conservative, capitalistic court to invalidate a law granting maternity leave to working
women-according primacy to property rights over human rights. The case of People vs. Pomar is no
longer the rule.
As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice
Holmes had been railing against the conservatism of Judges perverting the guarantee of due process
to protect property rights as against human rights or social justice for the working man. The law fixing
maximum hours of labor was invalidated. Justice Holmes was vindicated finally in 1936 in the case of
West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court

upheld the rights of workers to social justice in the form of guaranteed minimum wage for women and
minors, working hours not exceeding eight (8) daily, and maternity leave for women employees.
The power of judicial review and the principle of separation of powers as well as the rule on political
questions have been evolved and grafted into the American Constitution by judicial decisions
(Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer vs.
Government, 277 US 210-212, 72 L. ed. 852, 853).
It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate
concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political question
as beyond the ambit of judicial review. There is nothing in both the American and Philippine
Constitutions expressly providing that the power of the courts is limited by the principle of separation
of powers and the doctrine on political questions. There are numerous cases in Philippine
jurisprudence applying the doctrines of separation of powers and political questions and invoking
American precedents.
Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest in
the Supreme Court the power to review the validity or constitutionality of any legislative enactment or
executive act.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED AND SET
ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS. SHOULD A
GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE
PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE WORKMEN'S COMPENSATION ACT
SHALL BE DEDUCTED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ., concur.
Concepcion, Jr., J., is on leave.
Abad Santos and Relova, JJ., took no part.

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She
pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and
Maganda)
When is a man a man and when is a woman a woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and counseling with regard to a persons sex?

May a person successfully petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of
his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto
Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts
as a female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in a
mans body, he consulted several doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he underwent sex reassignment surgery 2 in
Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to
have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from
"male" to "female."
An order setting the case for initial hearing was published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with
the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always
felt, thought and acted like a woman, now possesses the physique of a female. Petitioners
misfortune to be trapped in a mans body is not his own doing and should not be in any way
taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or
the community in granting the petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her [fianc] and the realization of
their dreams.
Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit
to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender
from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals 7 rendered a decision8 in favor of the Republic. It ruled
that the trial courts decision lacked legal basis. There is no law allowing the change of either name or
sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of
Appeals granted the Republics petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied. 9 Hence,
this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed
under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As
found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right. 12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged
with the aforementioned administrative officers. The intent and effect of the law is to exclude the
change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. 15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first
name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
However, a change of name does not alter ones legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion,
changing petitioners first name for his declared purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or
any compelling reason justifying such change. 19 In addition, he must show that he will be prejudiced
by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was
not within that courts primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong
venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate
is kept. More importantly, it had no merit since the use of his true and official name does not prejudice
him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far
as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a persons sex appearing in his birth certificate is a legal issue and the court
must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The correction or change of such matters can now be
made through administrative proceedings and without the need for a judicial order. In effect, RA 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. 22 Rule 108
now applies only to substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as
a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor
even mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age, nationality and his family membership. 27
The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate
or illegitimate, or his being married or not. The comprehensive term status include such
matters as the beginning and end of legal personality, capacity to have rights in general, family
relations, and its various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing sex reassignment and its effects. This is
fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn
child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall
be exempt from documentary stamp tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician or midwife in attendance at the birth or by
either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)
place where the infant was born; and (f) such other data as may be required in the regulations
to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant. Considering that there is no law
legally recognizing sex reassignment, the determination of a persons sex made at the time of his or
her birth, if not attended by error,30is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in
the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In
this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a
male from a female"32 or "the distinction between male and female." 33 Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have been used in that sense unless
the context compels to the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used
then is something alterable through surgery or something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through
the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry
for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries
in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground
of Equity
The trial court opined that its grant of the petition was in consonance with the principles of justice and
equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This
is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioners first step
towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code 40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court, 41 among others. These laws
underscore the public policy in relation to women which could be substantially affected if petitioners
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license
for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to
make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what

proof must be presented and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change his name and sex to
conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to fashion a
law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only
apply or interpret the written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly recognized parameters of
social convention and that, at least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the
courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

G.R. No. 134241

August 11, 2003

DAVID REYES (Substituted by Victoria R. Fabella), petitioner,

vs.
JOSE LIM, CHUY CHENG KENG and HARRISON LUMBER, INC., respondents.
CARPIO, J.:
The Case
This is a petition for review on certiorari of the Decision1 dated 12 May 1998 of the Court of Appeals in
CA-G.R. SP No. 46224. The Court of Appeals dismissed the petition for certiorari assailing the Orders
dated 6 March 1997, 3 July 1997 and 3 October 1997 of the Regional Trial Court of Paranaque,
Branch 2602 ("trial court") in Civil Case No. 95-032.
The Facts
On 23 March 1995, petitioner David Reyes ("Reyes") filed before the trial court a complaint for
annulment of contract and damages against respondents Jose Lim ("Lim"), Chuy Cheng Keng
("Keng") and Harrison Lumber, Inc. ("Harrison Lumber").

The complaint3 alleged that on 7 November 1994, Reyes as seller and Lim as buyer entered into a
contract to sell ("Contract to Sell") a parcel of land ("Property") located along F.B. Harrison Street,
Pasay City. Harrison Lumber occupied the Property as lessee with a monthly rental of P35,000. The
Contract to Sell provided for the following terms and conditions:
1. The total consideration for the purchase of the aforedescribed parcel of land together with
the perimeter walls found therein is TWENTY EIGHT MILLION (P28,000,000.00) PESOS
payable as follows:
(a) TEN MILLION (P10,000,000.00) PESOS upon signing of this Contract to Sell;
(b) The balance of EIGHTEEN MILLION (P18,000,000.00) PESOS shall be paid on or before
March 8, 1995 at 9:30 A.M. at a bank to be designated by the Buyer but upon the complete
vacation of all the tenants or occupants of the property and execution of the Deed of Absolute
Sale. However, if the tenants or occupants have vacated the premises earlier than March 8,
1995, the VENDOR shall give the VENDEE at least one week advance notice for the payment
of the balance and execution of the Deed of Absolute Sale.
2. That in the event, the tenants or occupants of the premises subject of this sale shall not
vacate the premises on March 8, 1995 as stated above, the VENDEE shall withhold the
payment of the balance of P18,000,000.00 and the VENDOR agrees to pay a penalty of Four
percent (4%) per month to the herein VENDEE based on the amount of the downpayment of
TEN MILLION (P10,000,000.00) PESOS until the complete vacation of the premises by the
tenants therein.4
The complaint claimed that Reyes had informed Harrison Lumber to vacate the Property before the
end of January 1995. Reyes also informed Keng 5 and Harrison Lumber that if they failed to vacate by
8 March 1995, he would hold them liable for the penalty of P400,000 a month as provided in the
Contract to Sell. The complaint further alleged that Lim connived with Harrison Lumber not to vacate
the Property until the P400,000 monthly penalty would have accumulated and equaled the unpaid
purchase price of P18,000,000.
On 3 May 1995, Keng and Harrison Lumber filed their Answer 6 denying they connived with Lim to
defraud Reyes. Keng and Harrison Lumber alleged that Reyes approved their request for an
extension of time to vacate the Property due to their difficulty in finding a new location for their
business. Harrison Lumber claimed that as of March 1995, it had already started transferring some of
its merchandise to its new business location in Malabon. 7
On 31 May 1995, Lim filed his Answer 8 stating that he was ready and willing to pay the balance of the
purchase price on or before 8 March 1995. Lim requested a meeting with Reyes through the latters
daughter on the signing of the Deed of Absolute Sale and the payment of the balance but Reyes kept
postponing their meeting. On 9 March 1995, Reyes offered to return the P10 million down payment to
Lim because Reyes was having problems in removing the lessee from the Property. Lim rejected
Reyes offer and proceeded to verify the status of Reyes title to the Property. Lim learned that Reyes
had already sold the Property to Line One Foods Corporation ("Line One") on 1 March 1995 for
P16,782,840. After the registration of the Deed of Absolute Sale, the Register of Deeds issued to Line
One TCT No. 134767 covering the Property. Lim denied conniving with Keng and Harrison Lumber to
defraud Reyes.
On 2 November 1995, Reyes filed a Motion for Leave to File Amended Complaint due to supervening
facts. These included the filing by Lim of a complaint for estafa against Reyes as well as an action for

specific performance and nullification of sale and title plus damages before another trial court. 9 The
trial court granted the motion in an Order dated 23 November 1995.
In his Amended Answer dated 18 January 1996, 10 Lim prayed for the cancellation of the Contract to
Sell and for the issuance of a writ of preliminary attachment against Reyes. The trial court denied the
prayer for a writ of preliminary attachment in an Order dated 7 October 1996.
On 6 March 1997, Lim requested in open court that Reyes be ordered to deposit the P10 million down
payment with the cashier of the Regional Trial Court of Paraaque. The trial court granted this motion.
On 25 March 1997, Reyes filed a Motion to Set Aside the Order dated 6 March 1997 on the ground
the Order practically granted the reliefs Lim prayed for in his Amended Answer.11 The trial court
denied Reyes motion in an Order12 dated 3 July 1997. Citing Article 1385 of the Civil Code, the trial
court ruled that an action for rescission could prosper only if the party demanding rescission can
return whatever he may be obliged to restore should the court grant the rescission.
The trial court denied Reyes Motion for Reconsideration in its Order 13 dated 3 October 1997. In the
same order, the trial court directed Reyes to deposit the P10 million down payment with the Clerk of
Court on or before 30 October 1997.
On 8 December 1997, Reyes14 filed a Petition for Certiorari15 with the Court of Appeals. Reyes prayed
that the Orders of the trial court dated 6 March 1997, 3 July 1997 and 3 October 1997 be set aside for
having been issued with grave abuse of discretion amounting to lack of jurisdiction. On 12 May 1998,
the Court of Appeals dismissed the petition for lack of merit.
Hence, this petition for review.
The Ruling of the Court of Appeals
The Court of Appeals ruled the trial court could validly issue the assailed orders in the exercise of its
equity jurisdiction. The court may grant equitable reliefs to breathe life and force to substantive law
such as Article 138516 of the Civil Code since the provisional remedies under the Rules of Court do
not apply to this case.
The Court of Appeals held the assailed orders merely directed Reyes to deposit the P10 million to the
custody of the trial court to protect the interest of Lim who paid the amount to Reyes as down
payment. This did not mean the money would be returned automatically to Lim.
The Issues
Reyes raises the following issues:
1. Whether the Court of Appeals erred in holding the trial court could issue the questioned
Orders dated March 6, 1997, July 3, 1997 and October 3, 1997, requiring petitioner David
Reyes to deposit the amount of Ten Million Pesos (P10,000,000.00) during the pendency of
the action, when deposit is not among the provisional remedies enumerated in Rule 57 to 61 of
the 1997 Rules on Civil Procedure.
2. Whether the Court of Appeals erred in finding the trial court could issue the questioned
Orders on grounds of equity when there is an applicable law on the matter, that is, Rules 57 to
61 of the 1997 Rules on Civil Procedure.17

The Courts Ruling

Reyes contentions are without merit.
Reyes points out that deposit is not among the provisional remedies enumerated in the 1997 Rules of
Civil Procedure. Reyes stresses the enumeration in the Rules is exclusive. Not one of the provisional
remedies in Rules 57 to 6118 applies to this case. Reyes argues that a court cannot apply equity and
require deposit if the law already prescribes the specific provisional remedies which do not include
deposit. Reyes invokes the principle that equity is "applied only in the absence of, and never against,
statutory law or x x x judicial rules of procedure." 19Reyes adds the fact that the provisional remedies
do not include deposit is a matter of dura lex sed lex. 20
The instant case, however, is precisely one where there is a hiatus in the law and in the Rules of
Court. If left alone, the hiatus will result in unjust enrichment to Reyes at the expense of Lim. The
hiatus may also imperil restitution, which is a precondition to the rescission of the Contract to Sell that
Reyes himself seeks. This is not a case of equity overruling a positive provision of law or judicial rule
for there is none that governs this particular case. This is a case of silence or insufficiency of the law
and the Rules of Court. In this case, Article 9 of the Civil Code expressly mandates the courts to
make a ruling despite the "silence, obscurity or insufficiency of the laws." 21 This calls for the
application of equity,22 which "fills the open spaces in the law." 23
Thus, the trial court in the exercise of its equity jurisdiction may validly order the deposit of the P10
million down payment in court. The purpose of the exercise of equity jurisdiction in this case is to
prevent unjust enrichment and to ensure restitution. Equity jurisdiction aims to do complete justice in
cases where a court of law is unable to adapt its judgments to the special circumstances of a case
because of the inflexibility of its statutory or legal jurisdiction. 24 Equity is the principle by which
substantial justice may be attained in cases where the prescribed or customary forms of ordinary law
are inadequate.25
Reyes is seeking rescission of the Contract to Sell. In his amended answer, Lim is also seeking
cancellation of the Contract to Sell. The trial court then ordered Reyes to deposit in court the P10
million down payment that Lim made under the Contract to Sell. Reyes admits receipt of the P10
million down payment but opposes the order to deposit the amount in court. Reyes contends that
prior to a judgment annulling the Contract to Sell, he has the "right to use, possess and enjoy" 26 the
P10 million as its "owner"27 unless the court orders its preliminary attachment.28
To subscribe to Reyes contention will unjustly enrich Reyes at the expense of Lim. Reyes sold to Line
One the Property even before the balance of P18 million under the Contract to Sell with Lim became
due on 8 March 1995. On 1 March 1995, Reyes signed a Deed of Absolute Sale 29 in favor of Line
One. On 3 March 1995, the Register of Deeds issued TCT No. 134767 30 in the name of Line
One.31 Reyes cannot claim ownership of the P10 million down payment because Reyes had already
sold to another buyer the Property for which Lim made the down payment. In fact, in his
Comment32 dated 20 March 1996, Reyes reiterated his offer to return to Lim the P10 million down
payment.
On balance, it is unreasonable and unjust for Reyes to object to the deposit of the P10 million down
payment. The application of equity always involves a balancing of the equities in a particular case, a
matter addressed to the sound discretion of the court. Here, we find the equities weigh heavily in
favor of Lim, who paid the P10 million down payment in good faith only to discover later that Reyes
had subsequently sold the Property to another buyer.

In Eternal Gardens Memorial Parks Corp. v. IAC,33 this Court held the plaintiff could not continue to
benefit from the property or funds in litigation during the pendency of the suit at the expense of
whomever the court might ultimately adjudge as the lawful owner. The Court declared:
In the case at bar, a careful analysis of the records will show that petitioner admitted among others in
its complaint in Interpleader that it is still obligated to pay certain amounts to private respondent; that
it claims no interest in such amounts due and is willing to pay whoever is declared entitled to said
amounts. x x x
Under the circumstances, there appears to be no plausible reason for petitioners objections to the
deposit of the amounts in litigation after having asked for the assistance of the lower court by filing a
complaint for interpleader where the deposit of aforesaid amounts is not only required by the nature
of the action but is a contractual obligation of the petitioner under the Land Development Program
(Rollo, p. 252).
There is also no plausible or justifiable reason for Reyes to object to the deposit of the P10 million
down payment in court. The Contract to Sell can no longer be enforced because Reyes himself
subsequently sold the Property to Line One. Both Reyes and Lim are now seeking rescission of the
Contract to Sell. Under Article 1385 of the Civil Code, rescission creates the obligation to return the
things that are the object of the contract. Rescission is possible only when the person demanding
rescission can return whatever he may be obliged to restore. A court of equity will not rescind a
contract unless there is restitution, that is, the parties are restored to the status quo ante. 34
Thus, since Reyes is demanding to rescind the Contract to Sell, he cannot refuse to deposit the P10
million down payment in court.35 Such deposit will ensure restitution of the P10 million to its rightful
owner. Lim, on the other hand, has nothing to refund, as he has not received anything under the
Contract to Sell.36
In Government of the Philippine Islands v. Wagner and Cleland Wagner,37 the Court ruled the
refund of amounts received under a contract is a precondition to the rescission of the contract. The
Court declared:
The Government, having asked for rescission, must restore to the defendants whatever it has
received under the contract. It will only be just if, as a condition to rescission, the Government
be required to refund to the defendants an amount equal to the purchase price, plus the sums
expended by them in improving the land. (Civil Code, art. 1295.)
The principle that no person may unjustly enrich himself at the expense of another is embodied in
Article 2238 of the Civil Code. This principle applies not only to substantive rights but also to
procedural remedies. One condition for invoking this principle is that the aggrieved party has no other
action based on contract, quasi-contract, crime, quasi-delict or any other provision of law.39 Courts
can extend this condition to the hiatus in the Rules of Court where the aggrieved party, during the
pendency of the case, has no other recourse based on the provisional remedies of the Rules of
Court.
Thus, a court may not permit a seller to retain, pendente lite, money paid by a buyer if the seller
himself seeks rescission of the sale because he has subsequently sold the same property to another
buyer.40 By seeking rescission, a seller necessarily offers to return what he has received from the
buyer. Such a seller may not take back his offer if the court deems it equitable, to prevent unjust
enrichment and ensure restitution, to put the money in judicial deposit.

There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a
person retains money or property of another against the fundamental principles of justice, equity and
good conscience.41In this case, it was just, equitable and proper for the trial court to order the deposit
of the P10 million down payment to prevent unjust enrichment by Reyes at the expense of Lim. 42
WHEREFORE, we AFFIRM the Decision of the Court of Appeals.
SO ORDERED.
Davide, Jr., C.J., Vitug, Ynares-Santiago, and Azcuna, JJ., concur.