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Republic of the Philippines

SUPREME COURT
Manila
First Division
EN BANC
G.R. No. 175769-70

January 19, 2009

ABS-CBN BROADCASTING CORPORATION, Petitioners,


vs.
PHILIPPINE MULTI-MEDIA SYSTEM, INC., CESAR G. REYES, FRANCIS CHUA (ANG BIAO), MANUEL F. ABELLADA, RAUL B. DE MESA, AND
ALOYSIUS M. COLAYCO, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari 1 assails the July 12, 2006 Decision 2 of the Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, which affirmed
the December 20, 2004 Decision of the Director-General of the Intellectual Property Office (IPO) in Appeal No. 10-2004-0002. Also assailed is the
December 11, 2006 Resolution3 denying the motion for reconsideration.
Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is licensed under the laws of the Republic of the Philippines to engage in television and radio
broadcasting.4 It broadcasts television programs by wireless means to Metro Manila and nearby provinces, and by satellite to provincial stations through
Channel 2 on Very High Frequency (VHF) and Channel 23 on Ultra High Frequency (UHF). The programs aired over Channels 2 and 23 are either
produced by ABS-CBN or purchased from or licensed by other producers.
ABS-CBN also owns regional television stations which pattern their programming in accordance with perceived demands of the region. Thus, television
programs shown in Metro Manila and nearby provinces are not necessarily shown in other provinces.
Respondent Philippine Multi-Media System, Inc. (PMSI) is the operator of Dream Broadcasting System. It delivers digital direct-to-home (DTH) television
via satellite to its subscribers all over the Philippines. Herein individual respondents, Cesar G. Reyes, Francis Chua, Manuel F. Abellada, Raul B. De
Mesa, and Aloysius M. Colayco, are members of PMSIs Board of Directors.
PMSI was granted a legislative franchise under Republic Act No. 8630 5 on May 7, 1998 and was given a Provisional Authority by the National
Telecommunications Commission (NTC) on February 1, 2000 to install, operate and maintain a nationwide DTH satellite service. When it commenced
operations, it offered as part of its program line-up ABS-CBN Channels 2 and 23, NBN, Channel 4, ABC Channel 5, GMA Channel 7, RPN Channel 9,
and IBC Channel 13, together with other paid premium program channels.
However, on April 25, 2001,6 ABS-CBN demanded for PMSI to cease and desist from rebroadcasting Channels 2 and 23. On April 27, 2001, 7 PMSI
replied that the rebroadcasting was in accordance with the authority granted it by NTC and its obligation under NTC Memorandum Circular No. 4-0888,8 Section 6.2 of which requires all cable television system operators operating in a community within Grade A or B contours to carry the television
signals of the authorized television broadcast stations.9
Thereafter, negotiations ensued between the parties in an effort to reach a settlement; however, the negotiations were terminated on April 4, 2002 by
ABS-CBN allegedly due to PMSIs inability to ensure the prevention of illegal retransmission and further rebroadcast of its signals, as well as the adverse
effect of the rebroadcasts on the business operations of its regional television stations. 10
On May 13, 2002, ABS-CBN filed with the IPO a complaint for Violation of Laws Involving Property Rights, with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction, which was docketed as IPV No. 10-2002-0004. It alleged that PMSIs unauthorized
rebroadcasting of Channels 2 and 23 infringed on its broadcasting rights and copyright.
On July 2, 2002, the Bureau of Legal Affairs (BLA) of the IPO granted ABS-CBNs application for a temporary restraining order. On July 12, 2002, PMSI
suspended its retransmission of Channels 2 and 23 and likewise filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R.
SP No. 71597.
Subsequently, PMSI filed with the BLA a Manifestation reiterating that it is subject to the must-carry rule under Memorandum Circular No. 04-08-88. It
also submitted a letter dated December 20, 2002 of then NTC Commissioner Armi Jane R. Borje to PMSI stating as follows:
This refers to your letter dated December 16, 2002 requesting for regulatory guidance from this Commission in connection with the application and
coverage of NTC Memorandum Circular No. 4-08-88, particularly Section 6 thereof, on mandatory carriage of television broadcast signals, to the directto-home (DTH) pay television services of Philippine Multi-Media System, Inc. (PMSI).
Preliminarily, both DTH pay television and cable television services are broadcast services, the only difference being the medium of delivering such
services (i.e. the former by satellite and the latter by cable). Both can carry broadcast signals to the remote areas, thus enriching the lives of the
residents thereof through the dissemination of social, economic, educational information and cultural programs.

The DTH pay television services of PMSI is equipped to provide nationwide DTH satellite services. Concededly, PMSIs DTH pay television services
covers very much wider areas in terms of carriage of broadcast signals, including areas not reachable by cable television services thereby providing a
better medium of dissemination of information to the public.
In view of the foregoing and the spirit and intent of NTC memorandum Circular No. 4-08-88, particularly section 6 thereof, on mandatory
carriage of television broadcast signals, DTH pay television services should be deemed covered by such NTC Memorandum Circular.
For your guidance. (Emphasis added)11
On August 26, 2003, PMSI filed another Manifestation with the BLA that it received a letter dated July 24, 2003 from the NTC enjoining strict and
immediate compliance with the must-carry rule under Memorandum Circular No. 04-08-88, to wit:
Dear Mr. Abellada:
Last July 22, 2003, the National Telecommunications Commission (NTC) received a letter dated July 17, 2003 from President/COO Rene Q. Bello of the
International Broadcasting Corporation (IBC-Channel 13) complaining that your company, Dream Broadcasting System, Inc., has cut-off, without any
notice or explanation whatsoever, to air the programs of IBC-13, a free-to-air television, to the detriment of the public.
We were told that, until now, this has been going on.
Please be advised that as a direct broadcast satellite operator, operating a direct-to-home (DTH) broadcasting system, with a provisional
authority (PA) from the NTC, your company, along with cable television operators, are mandated to strictly comply with the existing policy of
NTC on mandatory carriage of television broadcast signals as provided under Memorandum Circular No. 04-08-88, also known as the Revised
Rules and Regulations Governing Cable Television System in the Philippines.
This mandatory coverage provision under Section 6.2 of said Memorandum Circular, requires all cable television system operators, operating
in a community within the Grade A or B contours to must-carry the television signals of the authorized television broadcast stations,
one of which is IBC-13. Said directive equally applies to your company as the circular was issued to give consumers and the public a wider
access to more sources of news, information, entertainment and other programs/contents.
This Commission, as the governing agency vested by laws with the jurisdiction, supervision and control over all public services, which includes direct
broadcast satellite operators, and taking into consideration the paramount interest of the public in general, hereby directs you to immediately restore the
signal of IBC-13 in your network programs, pursuant to existing circulars and regulations of the Commission.
For strict compliance. (Emphasis added)12
Meanwhile, on October 10, 2003, the NTC issued Memorandum Circular No. 10-10-2003, entitled Implementing Rules and Regulations Governing
Community Antenna/Cable Television (CATV) and Direct Broadcast Satellite (DBS) Services to Promote Competition in the Sector. Article 6, Section 8
thereof states:
As a general rule, the reception, distribution and/or transmission by any CATV/DBS operator of any television signals without any agreement with or
authorization from program/content providers are prohibited.
On whether Memorandum Circular No. 10-10-2003 amended Memorandum Circular No. 04-08-88, the NTC explained to PMSI in a letter dated
November 3, 2003 that:
To address your query on whether or not the provisions of MC 10-10-2003 would have the effect of amending the provisions of MC 4-08-88 on
mandatory carriage of television signals, the answer is in the negative.
xxxx
The Commission maintains that, MC 4-08-88 remains valid, subsisting and enforceable.
Please be advised, therefore, that as duly licensed direct-to-home satellite television service provider authorized by this Commission, your
company continues to be bound by the guidelines provided for under MC 04-08-88, specifically your obligation under its mandatory carriage
provisions, in addition to your obligations under MC 10-10-2003. (Emphasis added)
Please be guided accordingly.13
On December 22, 2003, the BLA rendered a decision 14 finding that PMSI infringed the broadcasting rights and copyright of ABS-CBN and ordering it to
permanently cease and desist from rebroadcasting Channels 2 and 23.
On February 6, 2004, PMSI filed an appeal with the Office of the Director-General of the IPO which was docketed as Appeal No. 10-2004-0002. On
December 23, 2004, it also filed with the Court of Appeals a Motion to Withdraw Petition; Alternatively, Memorandum of the Petition for Certiorari in CAG.R. SP No. 71597, which was granted in a resolution dated February 17, 2005.

On December 20, 2004, the Director-General of the IPO rendered a decision15 in favor of PMSI, the dispositive portion of which states:
WHEREFORE, premises considered, the instant appeal is hereby GRANTED. Accordingly, Decision No. 2003-01 dated 22 December 2003 of the
Director of Bureau of Legal Affairs is hereby REVERSED and SET ASIDE.
Let a copy of this Decision be furnished the Director of the Bureau of Legal Affairs for appropriate action, and the records be returned to her for proper
disposition. The Documentation, Information and Technology Transfer Bureau is also given a copy for library and reference purposes.
SO ORDERED.16
Thus, ABS-CBN filed a petition for review with prayer for issuance of a temporary restraining order and writ of preliminary injunction with the Court of
Appeals, which was docketed as CA-G.R. SP No. 88092.
On July 18, 2005, the Court of Appeals issued a temporary restraining order. Thereafter, ABS-CBN filed a petition for contempt against PMSI for
continuing to rebroadcast Channels 2 and 23 despite the restraining order. The case was docketed as CA- G.R. SP No. 90762.
On November 14, 2005, the Court of Appeals ordered the consolidation of CA-G.R. SP Nos. 88092 and 90762.
In the assailed Decision dated July 12, 2006, the Court of Appeals sustained the findings of the Director-General of the IPO and dismissed both petitions
filed by ABS-CBN.17
ABS-CBNs motion for reconsideration was denied, hence, this petition.
ABS-CBN contends that PMSIs unauthorized rebroadcasting of Channels 2 and 23 is an infringement of its broadcasting rights and copyright under the
Intellectual Property Code (IP Code);18that Memorandum Circular No. 04-08-88 excludes DTH satellite television operators; that the Court of Appeals
interpretation of the must-carry rule violates Section 9 of Article III 19 of the Constitution because it allows the taking of property for public use without
payment of just compensation; that the Court of Appeals erred in dismissing the petition for contempt docketed as CA-G.R. SP No. 90762 without
requiring respondents to file comment.
Respondents, on the other hand, argue that PMSIs rebroadcasting of Channels 2 and 23 is sanctioned by Memorandum Circular No. 04-08-88; that the
must-carry rule under the Memorandum Circular is a valid exercise of police power; and that the Court of Appeals correctly dismissed CA-G.R. SP No.
90762 since it found no need to exercise its power of contempt.
After a careful review of the facts and records of this case, we affirm the findings of the Director-General of the IPO and the Court of Appeals.
There is no merit in ABS-CBNs contention that PMSI violated its broadcasters rights under Section 211 of the IP Code which provides in part:
Chapter
BROADCASTING ORGANIZATIONS

XIV

Sec. 211. Scope of Right. - Subject to the provisions of Section 212, broadcasting organizations shall enjoy the exclusive right to carry out, authorize or
prevent any of the following acts:
211.1. The rebroadcasting of their broadcasts;
xxxx
Neither is PMSI guilty of infringement of ABS-CBNs copyright under Section 177 of the IP Code which states that copyright or economic rights shall
consist of the exclusive right to carry out, authorize or prevent the public performance of the work (Section 177.6), and other communication to the public
of the work (Section 177.7).20
Section 202.7 of the IP Code defines broadcasting as the transmission by wireless means for the public reception of sounds or of images or of
representations thereof; such transmission by satellite is also broadcasting where the means for decrypting are provided to the public by the
broadcasting organization or with its consent.
On the other hand, rebroadcasting as defined in Article 3(g) of the International Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations, otherwise known as the 1961 Rome Convention, of which the Republic of the Philippines is a signatory, 21 is the
simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
The Director-General of the IPO correctly found that PMSI is not engaged in rebroadcasting and thus cannot be considered to have infringed ABS-CBNs
broadcasting rights and copyright, thus:
That the Appellants [herein respondent PMSI] subscribers are able to view Appellees [herein petitioner ABS-CBN] programs (Channels 2 and 23) at the
same time that the latter is broadcasting the same is undisputed. The question however is, would the Appellant in doing so be considered engaged in
broadcasting. Section 202.7 of the IP Code states that broadcasting means

the transmission by wireless means for the public reception of sounds or of images or of representations thereof; such transmission by satellite is also
broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
Section 202.7 of the IP Code, thus, provides two instances wherein there is broadcasting, to wit:
1. The transmission by wireless means for the public reception of sounds or of images or of representations thereof; and
2. The transmission by satellite for the public reception of sounds or of images or of representations thereof where the means for
decrypting are provided to the public by the broadcasting organization or with its consent.
It is under the second category that Appellants DTH satellite television service must be examined since it is satellite-based. The elements of such
category are as follows:
1. There is transmission of sounds or images or of representations thereof;
2. The transmission is through satellite;
3. The transmission is for public reception; and
4. The means for decrypting are provided to the public by the broadcasting organization or with its consent.
It is only the presence of all the above elements can a determination that the DTH is broadcasting and consequently, rebroadcasting Appellees signals
in violation of Sections 211 and 177 of the IP Code, may be arrived at.
Accordingly, this Office is of the view that the transmission contemplated under Section 202.7 of the IP Code presupposes that the origin of the signals is
the broadcaster. Hence, a program that is broadcasted is attributed to the broadcaster. In the same manner, the rebroadcasted program is attributed to
the rebroadcaster.
In the case at hand, Appellant is not the origin nor does it claim to be the origin of the programs broadcasted by the Appellee. Appellant did not make
and transmit on its own but merely carried the existing signals of the Appellee. When Appellants subscribers view Appellees programs in Channels 2
and 23, they know that the origin thereof was the Appellee.
Aptly, it is imperative to discern the nature of broadcasting. When a broadcaster transmits, the signals are scattered or dispersed in the air. Anybody may
pick-up these signals. There is no restriction as to its number, type or class of recipients. To receive the signals, one is not required to subscribe or to
pay any fee. One only has to have a receiver, and in case of television signals, a television set, and to tune-in to the right channel/frequency. The
definition of broadcasting, wherein it is required that the transmission is wireless, all the more supports this discussion. Apparently, the undiscriminating
dispersal of signals in the air is possible only through wireless means. The use of wire in transmitting signals, such as cable television, limits the
recipients to those who are connected. Unlike wireless transmissions, in wire-based transmissions, it is not enough that one wants to be connected and
possesses the equipment. The service provider, such as cable television companies may choose its subscribers.
The only limitation to such dispersal of signals in the air is the technical capacity of the transmitters and other equipment employed by the broadcaster.
While the broadcaster may use a less powerful transmitter to limit its coverage, this is merely a business strategy or decision and not an inherent
limitation when transmission is through cable.
Accordingly, the nature of broadcasting is to scatter the signals in its widest area of coverage as possible. On this score, it may be said that making
public means that accessibility is undiscriminating as long as it [is] within the range of the transmitter and equipment of the broadcaster. That the medium
through which the Appellant carries the Appellees signal, that is via satellite, does not diminish the fact that it operates and functions as a cable
television. It remains that the Appellants transmission of signals via its DTH satellite television service cannot be considered within the purview of
broadcasting. x x x
xxxx
This Office also finds no evidence on record showing that the Appellant has provided decrypting means to the public indiscriminately. Considering the
nature of this case, which is punitive in fact, the burden of proving the existence of the elements constituting the acts punishable rests on the shoulder of
the complainant.
Accordingly, this Office finds that there is no rebroadcasting on the part of the Appellant of the Appellees programs on Channels 2 and 23, as defined
under the Rome Convention.22
Under the Rome Convention, rebroadcasting is the simultaneous broadcasting by one broadcasting organization of the broadcast of another
broadcasting organization. The Working Paper 23 prepared by the Secretariat of the Standing Committee on Copyright and Related Rights defines
broadcasting organizations as entities that take the financial and editorial responsibility for the selection and arrangement of, and investment in, the
transmitted content.24 Evidently, PMSI would not qualify as a broadcasting organization because it does not have the aforementioned responsibilities
imposed upon broadcasting organizations, such as ABS-CBN.
ABS-CBN creates and transmits its own signals; PMSI merely carries such signals which the viewers receive in its unaltered form. PMSI does not
produce, select, or determine the programs to be shown in Channels 2 and 23. Likewise, it does not pass itself off as the origin or author of such

programs. Insofar as Channels 2 and 23 are concerned, PMSI merely retransmits the same in accordance with Memorandum Circular 04-08-88. With
regard to its premium channels, it buys the channels from content providers and transmits on an as-is basis to its viewers. Clearly, PMSI does not
perform the functions of a broadcasting organization; thus, it cannot be said that it is engaged in rebroadcasting Channels 2 and 23.
The Director-General of the IPO and the Court of Appeals also correctly found that PMSIs services are similar to a cable television system because the
services it renders fall under cable retransmission, as described in the Working Paper, to wit:
(G) Cable Retransmission
47. When a radio or television program is being broadcast, it can be retransmitted to new audiences by means of cable or wire. In the early days of cable
television, it was mainly used to improve signal reception, particularly in so-called shadow zones, or to distribute the signals in large buildings or
building complexes. With improvements in technology, cable operators now often receive signals from satellites before retransmitting them in an
unaltered form to their subscribers through cable.
48. In principle, cable retransmission can be either simultaneous with the broadcast over-the-air or delayed (deferred transmission) on the basis of a
fixation or a reproduction of a fixation. Furthermore, they might be unaltered or altered, for example through replacement of commercials, etc. In
general, however, the term retransmission seems to be reserved for such transmissions which are both simultaneous and unaltered.
49. The Rome Convention does not grant rights against unauthorized cable retransmission. Without such a right, cable operators can retransmit both
domestic and foreign over the air broadcasts simultaneously to their subscribers without permission from the broadcasting organizations or other
rightholders and without obligation to pay remuneration.25 (Emphasis added)
Thus, while the Rome Convention gives broadcasting organizations the right to authorize or prohibit the rebroadcasting of its broadcast, however, this
protection does not extend to cable retransmission. The retransmission of ABS-CBNs signals by PMSI which functions essentially as a cable
television does not therefore constitute rebroadcasting in violation of the formers intellectual property rights under the IP Code.
It must be emphasized that the law on copyright is not absolute. The IP Code provides that:
Sec. 184. Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter V, the following acts shall not constitute infringement of copyright:
xxxx
(h) The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional
institutions where such use is in the public interest and is compatible with fair use;
The carriage of ABS-CBNs signals by virtue of the must-carry rule in Memorandum Circular No. 04-08-88 is under the direction and control of the
government though the NTC which is vested with exclusive jurisdiction to supervise, regulate and control telecommunications and broadcast
services/facilities in the Philippines. 26 The imposition of the must-carry rule is within the NTCs power to promulgate rules and regulations, as public
safety and interest may require, to encourage a larger and more effective use of communications, radio and television broadcasting facilities, and to
maintain effective competition among private entities in these activities whenever the Commission finds it reasonably feasible. 27 As correctly observed by
the Director-General of the IPO:
Accordingly, the Must-Carry Rule under NTC Circular No. 4-08-88 falls under the foregoing category of limitations on copyright. This Office agrees with
the Appellant [herein respondent PMSI] that the Must-Carry Rule is in consonance with the principles and objectives underlying Executive Order No.
436,28 to wit:
The Filipino people must be given wider access to more sources of news, information, education, sports event and entertainment programs other than
those provided for by mass media and afforded television programs to attain a well informed, well-versed and culturally refined citizenry and enhance
their socio-economic growth:
WHEREAS, cable television (CATV) systems could support or supplement the services provided by television broadcast facilities, local and overseas, as
the national information highway to the countryside.29
The Court of Appeals likewise correctly observed that:
[T]he very intent and spirit of the NTC Circular will prevent a situation whereby station owners and a few networks would have unfettered power to make
time available only to the highest bidders, to communicate only their own views on public issues, people, and to permit on the air only those with whom
they agreed contrary to the state policy that the (franchise) grantee like the petitioner, private respondent and other TV station owners, shall provide at
all times sound and balanced programming and assist in the functions of public information and education.
This is for the first time that we have a structure that works to accomplish explicit state policy goals. 30
Indeed, intellectual property protection is merely a means towards the end of making society benefit from the creation of its men and women of talent
and genius. This is the essence of intellectual property laws, and it explains why certain products of ingenuity that are concealed from the public are

outside the pale of protection afforded by the law. It also explains why the author or the creator enjoys no more rights than are consistent with public
welfare.31
Further, as correctly observed by the Court of Appeals, the must-carry rule as well as the legislative franchises granted to both ABS-CBN and PMSI are
in consonance with state policies enshrined in the Constitution, specifically Sections 9, 32 17,33 and 2434 of Article II on the Declaration of Principles and
State Policies.35
ABS-CBN was granted a legislative franchise under Republic Act No. 7966, Section 1 of which authorizes it to construct, operate and maintain, for
commercial purposes and in the public interest, television and radio broadcasting in and throughout the Philippines x x x. Section 4 thereof mandates
that it shall provide adequate public service time to enable the government, through the said broadcasting stations, to reach the population on important
public issues; provide at all times sound and balanced programming; promote public participation such as in community programming; assist in the
functions of public information and education x x x.
PMSI was likewise granted a legislative franchise under Republic Act No. 8630, Section 4 of which similarly states that it shall provide adequate public
service time to enable the government, through the said broadcasting stations, to reach the population on important public issues; provide at all times
sound and balanced programming; promote public participation such as in community programming; assist in the functions of public information and
education x x x. Section 5, paragraph 2 of the same law provides that the radio spectrum is a finite resource that is a part of the national patrimony and
the use thereof is a privilege conferred upon the grantee by the State and may be withdrawn anytime, after due process.
In Telecom. & Broadcast Attys. of the Phils., Inc. v. COMELEC, 36 the Court held that a franchise is a mere privilege which may be reasonably burdened
with some form of public service. Thus:
All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by
Congress in accordance with the constitutional provision that any such franchise or right granted . . . shall be subject to amendment, alteration or repeal
by the Congress when the common good so requires.
xxxx
Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio and television broadcast stations and, until the present
case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII, 11 of the Constitution authorizes the
amendment of franchises for the common good. What better measure can be conceived for the common good than one for free air time for the benefit
not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election? [I]t is the right of
the viewers and listeners, not the right of the broadcasters, which is paramount.
Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time. Even in the United States, there are
responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to ensure diversity of views and
attention to public affairs to further the system of free expression. For this purpose, broadcast stations may be required to give free air time to candidates
in an election. Thus, Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting the broadcast
industry, writes:
xxxx
In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of some form of public service. x x x 37
There is likewise no merit to ABS-CBNs claim that PMSIs carriage of its signals is for a commercial purpose; that its being the countrys top
broadcasting company, the availability of its signals allegedly enhances PMSIs attractiveness to potential customers; 38 or that the unauthorized carriage
of its signals by PMSI has created competition between its Metro Manila and regional stations.
ABS-CBN presented no substantial evidence to prove that PMSI carried its signals for profit; or that such carriage adversely affected the business
operations of its regional stations. Except for the testimonies of its witnesses,[39] no studies, statistical data or information have been submitted in
evidence.
Administrative charges cannot be based on mere speculation or conjecture. The complainant has the burden of proving by substantial evidence the
allegations in the complaint.40 Mere allegation is not evidence, and is not equivalent to proof.41
Anyone in the country who owns a television set and antenna can receive ABS-CBNs signals for free. Other broadcasting organizations with free-to-air
signals such as GMA-7, RPN-9, ABC-5, and IBC-13 can likewise be accessed for free. No payment is required to view the said channels 42 because
these broadcasting networks do not generate revenue from subscription from their viewers but from airtime revenue from contracts with commercial
advertisers and producers, as well as from direct sales.
In contrast, cable and DTH television earn revenues from viewer subscription. In the case of PMSI, it offers its customers premium paid channels from
content providers like Star Movies, Star World, Jack TV, and AXN, among others, thus allowing its customers to go beyond the limits of Free TV and
Cable TV.43 It does not advertise itself as a local channel carrier because these local channels can be viewed with or without DTH television.

Relevantly, PMSIs carriage of Channels 2 and 23 is material in arriving at the ratings and audience share of ABS-CBN and its programs. These ratings
help commercial advertisers and producers decide whether to buy airtime from the network. Thus, the must-carry rule is actually advantageous to the
broadcasting networks because it provides them with increased viewership which attracts commercial advertisers and producers.
On the other hand, the carriage of free-to-air signals imposes a burden to cable and DTH television providers such as PMSI. PMSI uses none of ABSCBNs resources or equipment and carries the signals and shoulders the costs without any recourse of charging. 44 Moreover, such carriage of signals
takes up channel space which can otherwise be utilized for other premium paid channels.
There is no merit to ABS-CBNs argument that PMSIs carriage of Channels 2 and 23 resulted in competition between its Metro Manila and regional
stations. ABS-CBN is free to decide to pattern its regional programming in accordance with perceived demands of the region; however, it cannot impose
this kind of programming on the regional viewers who are also entitled to the free-to-air channels. It must be emphasized that, as a national broadcasting
organization, one of ABS-CBNs responsibilities is to scatter its signals to the widest area of coverage as possible. That it should limit its signal reach for
the sole purpose of gaining profit for its regional stations undermines public interest and deprives the viewers of their right to access to information.
Indeed, television is a business; however, the welfare of the people must not be sacrificed in the pursuit of profit. The right of the viewers and listeners to
the most diverse choice of programs available is paramount.45 The Director-General correctly observed, thus:
The Must-Carry Rule favors both broadcasting organizations and the public. It prevents cable television companies from excluding broadcasting
organization especially in those places not reached by signal. Also, the rule prevents cable television companies from depriving viewers in far-flung
areas the enjoyment of programs available to city viewers. In fact, this Office finds the rule more burdensome on the part of the cable television
companies. The latter carries the television signals and shoulders the costs without any recourse of charging. On the other hand, the signals that are
carried by cable television companies are dispersed and scattered by the television stations and anybody with a television set is free to pick them up.
With its enormous resources and vaunted technological capabilities, Appellees [herein petitioner ABS-CBN] broadcast signals can reach almost every
corner of the archipelago. That in spite of such capacity, it chooses to maintain regional stations, is a business decision. That the Must-Carry Rule
adversely affects the profitability of maintaining such regional stations since there will be competition between them and its Metro Manila station is
speculative and an attempt to extrapolate the effects of the rule. As discussed above, Appellants DTH satellite television services is of limited
subscription. There was not even a showing on part of the Appellee the number of Appellants subscribers in one region as compared to non-subscribing
television owners. In any event, if this Office is to engage in conjecture, such competition between the regional stations and the Metro Manila station will
benefit the public as such competition will most likely result in the production of better television programs. 46
All told, we find that the Court of Appeals correctly upheld the decision of the IPO Director-General that PMSI did not infringe on ABS-CBNs intellectual
property rights under the IP Code. The findings of facts of administrative bodies charged with their specific field of expertise, are afforded great weight by
the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence presented, they are
conclusive, and in the interest of stability of the governmental structure, should not be disturbed.47
Moreover, the factual findings of the Court of Appeals are conclusive on the parties and are not reviewable by the Supreme Court. They carry even more
weight when the Court of Appeals affirms the factual findings of a lower fact-finding body,48 as in the instant case.
There is likewise no merit to ABS-CBNs contention that the Memorandum Circular excludes from its coverage DTH television services such as those
provided by PMSI. Section 6.2 of the Memorandum Circular requires all cable television system operators operating in a community within Grade A or
B contours to carry the television signals of the authorized television broadcast stations. 49 The rationale behind its issuance can be found in the
whereas clauses which state:
Whereas, Cable Television Systems or Community Antenna Television (CATV) have shown their ability to offer additional programming and to carry
much improved broadcast signals in the remote areas, thereby enriching the lives of the rest of the population through the dissemination of social,
economic, educational information and cultural programs;
Whereas, the national government supports the promotes the orderly growth of the Cable Television industry within the framework of a regulated fee
enterprise, which is a hallmark of a democratic society;
Whereas, public interest so requires that monopolies in commercial mass media shall be regulated or prohibited, hence, to achieve the same, the cable
TV industry is made part of the broadcast media;
Whereas, pursuant to Act 3846 as amended and Executive Order 205 granting the National Telecommunications Commission the authority to set down
rules and regulations in order to protect the public and promote the general welfare, the National Telecommunications Commission hereby promulgates
the following rules and regulations on Cable Television Systems;
The policy of the Memorandum Circular is to carry improved signals in remote areas for the good of the general public and to promote dissemination of
information. In line with this policy, it is clear that DTH television should be deemed covered by the Memorandum Circular. Notwithstanding the different
technologies employed, both DTH and cable television have the ability to carry improved signals and promote dissemination of information because they
operate and function in the same way.
In its December 20, 2002 letter,50 the NTC explained that both DTH and cable television services are of a similar nature, the only difference being the
medium of delivering such services. They can carry broadcast signals to the remote areas and possess the capability to enrich the lives of the residents
thereof through the dissemination of social, economic, educational information and cultural programs. Consequently, while the Memorandum Circular
refers to cable television, it should be understood as to include DTH television which provides essentially the same services.
In Eastern Telecommunications Philippines, Inc. v. International Communication Corporation, 51 we held:

The NTC, being the government agency entrusted with the regulation of activities coming under its special and technical forte, and possessing the
necessary rule-making power to implement its objectives, is in the best position to interpret its own rules, regulations and guidelines. The Court has
consistently yielded and accorded great respect to the interpretation by administrative agencies of their own rules unless there is an error of law, abuse
of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law.52
With regard to the issue of the constitutionality of the must-carry rule, the Court finds that its resolution is not necessary in the disposition of the instant
case. One of the essential requisites for a successful judicial inquiry into constitutional questions is that the resolution of the constitutional question must
be necessary in deciding the case.53 In Spouses Mirasol v. Court of Appeals,54 we held:
As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds. The policy of the courts is to avoid
ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the
contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully
studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved. 55
The instant case was instituted for violation of the IP Code and infringement of ABS-CBNs broadcasting rights and copyright, which can be resolved
without going into the constitutionality of Memorandum Circular No. 04-08-88. As held by the Court of Appeals, the only relevance of the circular in this
case is whether or not compliance therewith should be considered manifestation of lack of intent to commit infringement, and if it is, whether such lack of
intent is a valid defense against the complaint of petitioner.56
The records show that petitioner assailed the constitutionality of Memorandum Circular No. 04-08-88 by way of a collateral attack before the Court of
Appeals. In Philippine National Bank v. Palma,57 we ruled that for reasons of public policy, the constitutionality of a law cannot be collaterally attacked. A
law is deemed valid unless declared null and void by a competent court; more so when the issue has not been duly pleaded in the trial court. 58
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the pleadings, ordinarily it may not be
raised in the trial, and if not raised in the trial court, it will not be considered on appeal.59 In Philippine Veterans Bank v. Court of Appeals,60 we held:
We decline to rule on the issue of constitutionality as all the requisites for the exercise of judicial review are not present herein. Specifically, the
question of constitutionality will not be passed upon by the Court unless, at the first opportunity, it is properly raised and presented in an
appropriate case, adequately argued, and is necessary to a determination of the case, particularly where the issue of constitutionality is the
very lis mota presented.x x x61
Finally, we find that the dismissal of the petition for contempt filed by ABS-CBN is in order.
Indirect contempt may either be initiated (1) motu proprio by the court by issuing an order or any other formal charge requiring the respondent to show
cause why he should not be punished for contempt or (2) by the filing of a verified petition, complying with the requirements for filing initiatory
pleadings.62
ABS-CBN filed a verified petition before the Court of Appeals, which was docketed CA G.R. SP No. 90762, for PMSIs alleged disobedience to the
Resolution and Temporary Restraining Order, both dated July 18, 2005, issued in CA-G.R. SP No. 88092. However, after the cases were consolidated,
the Court of Appeals did not require PMSI to comment on the petition for contempt. It ruled on the merits of CA-G.R. SP No. 88092 and ordered the
dismissal of both petitions.
ABS-CBN argues that the Court of Appeals erred in dismissing the petition for contempt without having ordered respondents to comment on the same.
Consequently, it would have us reinstate CA-G.R. No. 90762 and order respondents to show cause why they should not be held in contempt.
It bears stressing that the proceedings for punishment of indirect contempt are criminal in nature. The modes of procedure and rules of evidence
adopted in contempt proceedings are similar in nature to those used in criminal prosecutions. 63 While it may be argued that the Court of Appeals should
have ordered respondents to comment, the issue has been rendered moot in light of our ruling on the merits. To order respondents to comment and
have the Court of Appeals conduct a hearing on the contempt charge when the main case has already been disposed of in favor of PMSI would be
circuitous. Where the issues have become moot, there is no justiciable controversy, thereby rendering the resolution of the same of no practical use or
value.64
WHEREFORE, the petition is DENIED. The July 12, 2006 Decision of the Court of Appeals in CA-G.R. SP Nos. 88092 and 90762, sustaining the
findings of the Director-General of the Intellectual Property Office and dismissing the petitions filed by ABS-CBN Broadcasting Corporation, and the
December 11, 2006 Resolution denying the motion for reconsideration, are AFFIRMED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
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 "onesided, 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 pre-Commonwealth 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

10

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 Melencio-Herrera, concur.

11

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.

SEPARATE OPINION

TEEHANKEE, J., dissenting:


I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket
enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral
argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and
regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the
real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following
considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a)
blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front
and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to
be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are
not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only
390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles
throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor
vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or
close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the
prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the
powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable
-highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to
ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less
than the P 50 million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present
petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong
impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

SEPARATE OPINION
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining order issued on October 19, 1978 against the blanket
enforcement of the requirement that all motor vehicles be equipped with the so-called early warning device, without even hearing the parties in oral
argument as generally required by the Court in original cases of far-reaching consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances grave and serious grounds of assailing "the rules and
regulations issued by the Land Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not reflect the
real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive,

12

unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society," because of the following
considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient E.W.D.'S such as "a)
blinking lights in the fore and aft of said motor vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front
and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged administrative order, whose effectivity and utility have yet to
be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s are
not too vital to the prevention of nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in 1976, only
390 or 1.5 per cent involved rear-end collisions," as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles
throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion that "as of 1975, there were at least 865,037 motor
vehicles all over the country requiring E.W.D.'S and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P 48,451,872.00, or
close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative road safety devices for stalled vehicles than the
prescribed E.W.D., such as the common petroleum lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways; and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The respondents have not shown that they have availed of the
powers and prerogatives vested in their offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of the deplorable
-highway accidents due to stoned vehicles, establishing an honest and foolproof system of examination and licensing of motor vehicle drivers so as to
ban the reckless and irresponsible and a sustained education campaign to instill safe driving habits and attitudes that can be carried out for much less
than the P 50 million burden that would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for his civic mindedness in having filed the present
petition g as capricious and unreasonable the "all pervading police power" of the State instead of throwing the case out of court and leaving the wrong
impression that the exercise of police power insofar as it may affect the life, liberty and property of any person is no longer subject to judicial inquiry.

Republic of the Philippines


SUPREME COURT
Baguio City
EN BANC
G.R. No. 190582

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson

13

West Virginia State Board of Education v. Barnette1


One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for
ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights.
Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical
justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its
roots in the COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List
System Act.4
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the
ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this
Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a
different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also
the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people
who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and
lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs
in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the
Revised Penal Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or disregardsdecency or morality x x x

14

It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that
Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications
and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the
owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it
being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to
satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited
drugs; and (5) are contrary to law, public order, morals, good customs,established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any
of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our
faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As
an agency of the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal,
Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate
Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino
citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations
would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of
marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of
their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike.
xxxx

15

IV. Public Morals


x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious
groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petitions paragraph
6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves
for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code
defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all
unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which
had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 12:00 noon of
January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application. 13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own comment. 14 The COMELEC, through its Law Department, filed its Comment on
February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing
until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its
Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladladspetition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on February 2, 2010.19
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of
speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was
no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been
recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression,
and assembly were concerned, the OSG maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA
7941, nor is it associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a
sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.

16

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members
and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that "save for a few isolated places in the
country, petitioner does not exist in almost all provinces in the country." 21
This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC
claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in
the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondents theory, and a serious violation of petitioners right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:"
Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN

17

RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside
from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang
Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters." 24 Clearly, "governmental reliance on
religious justification is inconsistent with this policy of neutrality." 25 We thus find that it was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance
some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways
that have primarily secular effects. As we held in Estrada v. Escritor: 26
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support
the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose.
That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a
compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing
earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been
transplanted into generally accepted public morals. The COMELEC argues:

18

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially
the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the
same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set of moral precepts is
in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit
to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm
of law.29
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have
been a finding by the COMELEC that the groups members have committed or are committing immoral acts." 30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the
COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the
moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we
cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering
to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil
Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in
the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts
have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of similar
persons."33 The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed
by other persons or other classes in the same place and in like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long
as it bears a rational relationship to some legitimate government end. 35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, 36 we
declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a
deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution."37
The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes
sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang
Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or
dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on
the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not
imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the
OSGs position that homosexuals are a class in themselves for the purposes of the equal protection clause. 38 We are not prepared to single out
homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply

19

unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly
situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square.
In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies
including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is
certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning
ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality
does not justify criminalizing same-sex conduct. 41 European and United Nations judicial decisions have ruled in favor of gay rights claimants on both
privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. 42 To the extent that there is much
to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities,
while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." 43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of
Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it
uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas
that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the
exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the population. 44 A
political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of
satisfying everyone concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it fall outside
the protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold
and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of
the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight
the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public
opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual
perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been
deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to
vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.

20

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect
of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list
elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x 47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG
itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been
precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically
in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental
support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms
may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the
ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation."48Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under
various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be
elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25
lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.
xxxx

21

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or
descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions which exclude any group or category of persons from elective office. 50
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations,
the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles
(the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), 51 which petitioner declares to reflect binding
principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of the International Court of Justice. 52 Petitioner has not undertaken any objective and
rigorous analysis of these alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not
an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a
much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they
are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are
at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is
characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris. 53
As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply
the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to
withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009
in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE P. PEREZ
Associate Justice

JOSE C. MENDOZA
Associate Justice

22

C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

SEPARATE CONCURRING OPINION


PUNO, C.J.:
I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C. del Castillo. Nonetheless, I respectfully submit this
separate opinion to underscore some points that I deem significant.
FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the non-establishment clause 1 of the Constitution. There was
cypher effort on the part of the COMELEC to couch its reasoning in legal much less constitutional terms, as it denied Ang Ladlads petition for
registration as a sectoral party principally on the ground that it "tolerates immorality which offends religious (i.e., Christian 2 and Muslim3) beliefs." To be
sure, the COMELECs ruling is completely antithetical to the fundamental rule that "[t]he public morality expressed in the law is necessarily secular[,] for
in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions." 4 As we explained in
Estrada v. Escritor,5 the requirement of an articulable and discernible secular purpose is meant to give flesh to the constitutional policy of full religious
freedom for all, viz.:
Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man's "views of his relations
to His Creator." But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of
ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce.
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers, or "public morals"
in the Revised Penal Code, or "morals" in the New Civil Code, or "moral character" in the Constitution, the distinction between public and secular
morality on the one hand, and religious morality, on the other, should be kept in mind. The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion;" anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief
and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious
freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this
policy of neutrality.6 (citations omitted and italics supplied)
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive that no religious test shall be required for the
exercise of civil or political rights.7 Ang Ladlads right of political participation was unduly infringed when the COMELEC, swayed by the private biases
and personal prejudices of its constituent members, arrogated unto itself the role of a religious court or worse, a morality police.
The COMELEC attempts to disengage itself from this "excessive entanglement" 8 with religion by arguing that we "cannot ignore our strict religious
upbringing, whether Christian or Muslim" 9 since the "moral precepts espoused by [these] religions have slipped into society and are now publicly
accepted moral norms."10 However, as correctly observed by Mr. Justice del Castillo, the Philippines has not seen fit to disparage homosexual conduct
as to actually criminalize it. Indeed, even if the State has legislated to this effect, the law is vulnerable to constitutional attack on privacy
grounds.11 These alleged "generally accepted public morals" have not, in reality, crossed over from the religious to the secular sphere.
Some people may find homosexuality and bisexuality deviant, odious, and offensive. Nevertheless, private discrimination, however unfounded, cannot
be attributed or ascribed to the State. Mr. Justice Kennedy, speaking for the United States (U.S.) Supreme Court in the landmark case of Lawrence v.
Texas,12 opined:
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to
condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and
respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral
principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however.
The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the law. "Our
obligation is to define the liberty of all, not to mandate our own moral code." 13
SECOND. The COMELEC capitalized on Ang Ladlads definition of the term "sexual orientation," 14 as well as its citation of the number of Filipino men
who have sex with men,15 as basis for the declaration that the party espouses and advocates sexual immorality. This position, however, would deny
homosexual and bisexual individuals a fundamental element of personal identity and a legitimate exercise of personal liberty. For, the "ability to
[independently] define ones identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the "emotional
enrichment from close ties with others."16 As Mr. Justice Blackmun so eloquently said in his stinging dissent in Bowers v. Hardwick 17 (overturned by the
United States Supreme Court seventeen years later in Lawrence v. Texas18):

23

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life,
community welfare, and the development of human personality[.]" 19 The fact that individuals define themselves in a significant way through their intimate
sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that
much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. 20
In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is
acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public
education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court
declared: "There can be no assumption that today's majority is right and the Amish and others like them are wrong. A way of life that is odd or even
erratic but interferes with no rights or interests of others is not to be condemned because it is different." 21 The Court claims that its decision today merely
refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all
individuals have in controlling the nature of their intimate associations with others. (italics supplied)
It has been said that freedom extends beyond spatial bounds. 22 Liberty presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. 23 These matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central to the liberty protected by the due process clause. 24 At the heart of liberty is the right to define ones
own concept of existence, of meaning, of the universe, and of the mystery of human life. 25 Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.26Lawrence v. Texas27 is again instructive:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would
demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to
be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to
control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being
punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent
injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in
the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution
allows homosexual persons the right to make this choice. (italics supplied)
THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals as a class in themselves for purposes of the equal
protection clause. Accordingly, it struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the rational basis test, according to
which government need only show that the challenged classification is rationally related to serving a legitimate state interest.
I humbly submit, however, that a classification based on gender or sexual orientation is a quasi-suspect classification, as to trigger a heightened level of
review.
Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the rational basis test, coupled with a
deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.28 However, Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 29 carved out an exception to this general rule, such
that prejudice to persons accorded special protection by the Constitution requires stricter judicial scrutiny than mere rationality, viz.:
Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of
justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice. (citations omitted and
italics supplied)
Considering thus that labor enjoys such special and protected status under our fundamental law, the Court ruled in favor of the Central Bank Employees
Association, Inc. in this wise:
While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the enactment of subsequent laws exempting all rankand-file employees of other GFIs leeched all validity out of the challenged proviso.
xxxx
According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the equal protection clause because after it was
enacted, the charters of the GSIS, LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage of
the SSL. Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the
GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz.:
xxxx
It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this common proviso: a blanket exemption of all
their employees from the coverage of the SSL, expressly or impliedly...

24

xxxx
The abovementioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the
continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This
time, the scrutiny relates to the constitutionality of the classification albeit made indirectly as a consequence of the passage of eight other laws
between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply equally to all
members of the class. The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as
practically to make unjust distinctions between persons who are without differences.
Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from
the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress
did not exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to sanction unequal and discriminatory
treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate
acts of Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification
made directly and deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal
analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby
proscribing any evaluation vis--vis the grouping, or the lack thereof, among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other
GFIs) rests "on a policy determination by the legislature." All legislative enactments necessarily rest on a policy determination even those that have
been declared to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and
equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive;
it cannot run riot and overrun the ramparts of protection of the Constitution.
xxxx
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their
rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The
distinction made by the law is not only superficial, but also arbitrary. It is not based on substantial distinctions that make real differences between the
BSP rank-and-file and the seven other GFIs.
xxxx
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious
discrimination no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven
other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis.
xxxx
Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in
cadence and in consonance with the progressive trend of other jurisdictions and in international law. There should be no hesitation in using the equal
protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in
the Constitution, coupled with the special status and protection afforded to labor, compel this approach.
Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v.
Quisumbing:
That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The
Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and
enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires
every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and
good faith."
International law, which springs from general principles of law, likewise proscribes discrimination. General principles of law include principles of equity,
i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation all
embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all
the more reprehensible.
The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace
the factory, the office or the field but include as well the manner by which employers treat their employees.
The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code provides that the State shall
"ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in

25

spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and
conditions of employment.
xxx

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Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensure, in
particular:
a. Remuneration which provides all workers, as a minimum, with:
i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not
inferior to those enjoyed by men, with equal pay for equal work;
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The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work
with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries.
xxxx
Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to
Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given
deferential treatment.
But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the
Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court's
solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the
character or nature of the actor.
In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive
higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the
SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank
possessing higher and better education and opportunities for career advancement are given higher compensation packages to entice them to stay.
Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of
job marketability, it is they and not the officers who have the real economic and financial need for the adjustment. This is in accord with the policy
of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality
of life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.
(citations omitted and italics supplied)
Corollarily, American case law provides that a state action questioned on equal protection grounds is subject to one of three levels of judicial scrutiny.
The level of review, on a sliding scale basis, varies with the type of classification utilized and the nature of the right affected. 30
If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a "fundamental right," then the courts will employ strict
scrutiny and the statute must fall unless the government can demonstrate that the classification has been precisely tailored to serve a compelling
governmental interest.31 Over the years, the United States Supreme Court has determined that suspect classes for equal protection purposes include
classifications based on race, religion, alienage, national origin, and ancestry.32 The underlying rationale of this theory is that where legislation affects
discrete and insular minorities, the presumption of constitutionality fades because traditional political processes may have broken down. 33 In such a
case, the State bears a heavy burden of justification, and the government action will be closely scrutinized in light of its asserted purpose. 34
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring constitutional difficulties, or if a classification
disadvantages a "quasi-suspect class," it will be treated under intermediate or heightened review.35 To survive intermediate scrutiny, the law must not
only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and
must not depend on broad generalizations.36 Noteworthy, and of special interest to us in this case, quasi-suspect classes include classifications based
on gender or illegitimacy.37
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere rationality. 38 This is a relatively relaxed standard reflecting
the Courts awareness that the drawing of lines which creates distinctions is peculiarly a legislative task and an unavoidable one. 39 The presumption is in
favor of the classification, of the reasonableness and fairness of state action, and of legitimate grounds of distinction, if any such grounds exist, on which
the State acted.40
Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional analysis, the United
States Supreme Court has looked to four factors,41 thus:
(1) The history of invidious discrimination against the class burdened by the legislation; 42

26

(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; 43
(3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control; 44 and
(4) The political power of the subject class.45
These factors, it must be emphasized, are not constitutive essential elements of a suspect or quasi-suspect class, as to individually demand a certain
weight.46 The U.S. Supreme Court has applied the four factors in a flexible manner; it has neither required, nor even discussed, every factor in every
case.47 Indeed, no single talisman can define those groups likely to be the target of classifications offensive to the equal protection clause and therefore
warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide.48
In any event, the first two factors history of intentional discrimination and relationship of classifying characteristic to a person's ability to contribute
have always been present when heightened scrutiny has been applied. 49 They have been critical to the analysis and could be considered as
prerequisites to concluding a group is a suspect or quasi-suspect class. 50 However, the last two factors immutability of the characteristic and political
powerlessness of the group are considered simply to supplement the analysis as a means to discern whether a need for heightened scrutiny exists. 51
Guided by this framework, and considering further that classifications based on sex or gender albeit on a male/female, man/woman basis have been
previously held to trigger heightened scrutiny, I respectfully submit that classification on the basis of sexual orientation (i.e., homosexuality and/or
bisexuality) is a quasi-suspect classification that prompts intermediate review.
The first consideration is whether homosexuals have suffered a history of purposeful unequal treatment because of their sexual orientation. 52 One
cannot, in good faith, dispute that gay and lesbian persons historically have been, and continue to be, the target of purposeful and pernicious
discrimination due solely to their sexual orientation.53 Paragraphs 6 and 7 of Ang Ladlads Petition for Registration for party-list accreditation in fact state:
6. There have been documented cases of discrimination and violence perpetuated against the LGBT Community, among which are:
(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them conform to standard gender norms of
behavior;
(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, so as] to "cure" them into becoming
straight women;
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of their identity;
(d) Effeminate youths and masculine young women are refused admission from (sic) certain schools, are suspended or are
automatically put on probation;
(e) Denial of jobs, promotions, trainings and other work benefits once ones sexual orientation and gender identity is (sic) revealed;
(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are broken up by their parents or
guardians using the [A]nti-kidnapping [L]aw;
(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to "reform" them;
(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to cure them[,] despite the de-listing (sic) of
homosexuality and lesbianism as a mental disorder by the American Psychiatric Association;
(i) Transgenders, or individuals who were born mail but who self-identity as women and dress as such, are denied entry or services
in certain restaurants and establishments; and
(j) Several murders from the years 2003-3006 were committed against gay men, but were not acknowledged by police as hate
crimes or violent acts of bigotry.
7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young gay person in the Philippines, he was subjected to
a variety of sexual abuse and violence, including repeated rapes[,] which he could not report to [the] police [or speak of] to his own parents.
Accordingly, this history of discrimination suggests that any legislative burden placed on lesbian and gay people as a class is "more likely than others to
reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." 54
A second relevant consideration is whether the character-in-issue is related to the persons ability to contribute to society. 55 Heightened scrutiny is
applied when the classification bears no relationship to this ability; the existence of this factor indicates the classification is likely based on irrelevant
stereotypes and prejudice.56 Insofar as sexual orientation is concerned, it is gainful to repair to Kerrigan v. Commissioner of Public Health, 57 viz.:
The defendants also concede that sexual orientation bears no relation to a person's ability to participate in or contribute to society, a fact that many
courts have acknowledged, as well. x x x If homosexuals were afflicted with some sort of impediment to their ability to perform and to contribute to
society, the entire phenomenon of staying in the [c]loset and of coming out would not exist; their impediment would betray their status. x x x In this

27

critical respect, gay persons stand in stark contrast to other groups that have been denied suspect or quasi-suspect class recognition, despite a history
of discrimination, because the distinguishing characteristics of those groups adversely affect their ability or capacity to perform certain functions or to
discharge certain responsibilities in society.58
Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to [an] individual's ability to contribute fully to
society."59 Indeed, because an individual's homosexual orientation "implies no impairment in judgment, stability, reliability or general social or vocational
capabilities";60 the observation of the United States Supreme Court that race, alienage and national origin -all suspect classes entitled to the highest level
of constitutional protection- "are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy" 61 is no less applicable to gay persons. (italics supplied)
Clearly, homosexual orientation is no more relevant to a person's ability to perform and contribute to society than is heterosexual orientation. 62
A third factor that courts have considered in determining whether the members of a class are entitled to heightened protection for equal protection
purposes is whether the attribute or characteristic that distinguishes them is immutable or otherwise beyond their control. 63 Of course, the characteristic
that distinguishes gay persons from others and qualifies them for recognition as a distinct and discrete group is the characteristic that historically has
resulted in their social and legal ostracism, namely, their attraction to persons of the same sex. 64
Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to change a characteristic that is used to justify
different treatment makes the discrimination violative of the rather "basic concept of our system that legal burdens should bear some relationship to
individual responsibility." 65 However, the constitutional relevance of the immutability factor is not reserved to those instances in which the trait defining
the burdened class is absolutely impossible to change. 66 That is, the immutability prong of the suspectness inquiry surely is satisfied when the identifying
trait is "so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change [it]." 67
Prescinding from these premises, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid
discriminatory treatment, because a person's sexual orientation is so integral an aspect of one's identity. 68 Consequently, because sexual orientation
"may be altered [if at all] only at the expense of significant damage to the individuals sense of self," classifications based thereon "are no less entitled to
consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic." 69 Stated
differently, sexual orientation is not the type of human trait that allows courts to relax their standard of review because the barrier is temporary or
susceptible to self-help.70
The final factor that bears consideration is whether the group is "a minority or politically powerless." 71 However, the political powerlessness factor of the
level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. 72 Rather, the touchstone of the analysis should be "whether the
group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means." 73
Applying this standard, it would not be difficult to conclude that gay persons are entitled to heightened constitutional protection despite some recent
political progress.74 The discrimination that they have suffered has been so pervasive and severe even though their sexual orientation has no bearing
at all on their ability to contribute to or perform in society that it is highly unlikely that legislative enactments alone will suffice to eliminate that
discrimination.75 Furthermore, insofar as the LGBT community plays a role in the political process, it is apparent that their numbers reflect their status as
a small and insular minority.76
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and trans-genders out for disparate treatment is subject to
heightened judicial scrutiny to ensure that it is not the product of historical prejudice and stereotyping. 77
In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level of review. Regrettably, they betray no more than bigotry
and intolerance; they raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected 78 (that is,
lesbian, gay, bisexual and trans-gendered individuals). In our constitutional system, status-based classification undertaken for its own sake cannot
survive.79
FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system because it is not a "marginalized and
underrepresented sector" enumerated either in the Constitution 80 or Republic Act No. (RA) 7941.81 However, this position is belied by our ruling in Ang
Bagong Bayani-OFW Labor Party v. COMELEC,82 where we clearly held that the enumeration of marginalized and underrepresented sectors in RA 7941
is not exclusive.
I likewise see no logical or factual obstacle to classifying the members of the LGBT community as marginalized and underrepresented, considering their
long history (and indeed, ongoing narrative) of persecution, discrimination, and pathos. In my humble view, marginalization for purposes of party-list
representation encompasses social marginalization as well. To hold otherwise is tantamount to trivializing socially marginalized groups as "mere passive
recipients of the States benevolence" and denying them the right to "participate directly [in the mainstream of representative democracy] in the
enactment of laws designed to benefit them."83 The party-list system could not have been conceptualized to perpetuate this injustice.
Accordingly, I vote to grant the petition.
REYNATO S. PUNO
Chief Justice
DISSENTING OPINION
CORONA, J.:

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Stripped of the complicated and contentious issues of morality and religion, I believe the basic issue here is simple: does petitioner Ang Ladlad LGBT
Party qualify, under the terms of the Constitution and RA 7941, as a marginalized and underrepresented sector in the party-list system?
The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the respondent Commission on Elections as a political
organization of a marginalized and underrepresented sector under the party-list system. Finding that petitioner is not a marginalized sector under RA
7941, the Commission on Elections denied its petition.
A System For Marginalized
And Underrepresented Sectors
The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the advancement of social justice with the fundamental purpose
of affording opportunity to marginalized and underrepresented sectors to participate in the shaping of public policy and the crafting of national laws. It is
premised on the proposition that the advancement of the interests of the marginalized sectors contributes to the advancement of the common good and
of our nations democratic ideals.
But who are the marginalized and underrepresented sectors for whom the party-list system was designed?
The Texts of the Constitution
And of RA1 7941
The resolution of a constitutional issue primarily requires that the text of the fundamental law be consulted. Section 5(2), Article VI of the Constitution
directs the course of our present inquiry. It provides:
SEC. 5. x x x
(2) The party-list representatives shall constitute twenty per centum of the total number of Representatives including those under the party-list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law,
by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector. (emphasis supplied)
The Constitution left the matter of determining the groups or sectors that may qualify as "marginalized" to the hands of Congress. Pursuant to this
constitutional mandate, RA 7941 or the Party-List System Act was enacted in 1995. The law provides:
Section 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable
Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the
House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest
possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in
the legislature, and shall provide the simplest scheme possible.
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Section 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing
with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided,
That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals.
The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.
The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case
not later than sixty (60) days before election.
Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or
cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:
(1) It is a religious sect or denomination, organization or association, organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;

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(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its
officers or members or indirectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the partylist system in the two (2) preceding elections for the constituency in which it has registered. (emphasis supplied)
The Courts Previous Pronouncements
As the oracle of the Constitution, this Court divined the intent of the party-list system and defined its meaning in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections:2
That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that
matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down
in the Constitution and RA 7941. x x x
The Marginalized and Underrepresented to Become Lawmakers Themselves
[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will
"enable" the election to the House of Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
2. who lack well-defined constituencies; but
3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.
The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack [of] well-defined constituencies."
"Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope.
Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim
and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in
Section 5. Concurrently, the persons nominated by the party-list candidate-organization must be "Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties."
Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or
territorial unit of government. Rather, it points again to those with disparate interests identified with the "marginalized or underrepresented."
In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and underrepresented" become members of Congress
under the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by
enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: "to
enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of
Representatives." Where the language of the law is clear, it must be applied according to its express terms.
The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing
with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require:
Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals."
While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can
be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in

30

connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the
meaning of a term in a statute may be limited, qualified or specialized by those in immediate association.
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Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park.
The interests of these two sectors are manifestly disparate; hence, the OSGs position to treat them similarly defies reason and common sense. In
contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that a group of bankers, industrialists and sugar
planters could not join the party-list system as representatives of their respective sectors.
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the
stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not
necessarily emanate from the size of ones constituency; indeed, it is likely to arise more directly from the number and amount of ones bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for
them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to
represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its
noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and
underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate,
as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and
desecrating this social justice vehicle.
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Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but
also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It
cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system. (emphasis and underscoring supplied)
Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is reserved only for those sectors marginalized and
underrepresented in the past (e.g., labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, professionals and even those in the underground movement who wish to come out and participate). They are those sectors
traditionally and historically marginalized and deprived of an opportunity to participate in the formulation of national policy although their sectoral
interests are also traditionally and historically regarded as vital to the national interest. That is why Section 2 of RA 7941 speaks of "marginalized and
under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole."
How should the matter of whether a particular sectoral interest is vital to national interest (and therefore beneficial to the nation as a whole) be
determined? Chief Justice Reynato S. Punos opinion 3 in Barangay Association for National Advancement and Transparency (BANAT) v. Commission on
Elections4 offers valuable insight:
Similarly, limiting the party-list system to the marginalized and excluding the major political parties from participating in the election of their
representatives is aligned with the constitutional mandate to "reduce social, economic, and political inequalities, and remove cultural inequalities by
equitably diffusing wealth and political power for the common good"; the right of the people and their organizations to effective and reasonable
participation at all levels of social, political, and economic decision-making; the right of women to opportunities that will enhance their welfare and enable
them to realize their full potential in the service of the nation; the right of labor to participate in policy and decision-making processes affecting their rights
and benefits in keeping with its role as a primary social economic force; the right of teachers to professional advancement; the rights of indigenous
cultural communities to the consideration of their cultures, traditions and institutions in the formulation of national plans and policies, and the
indispensable role of the private sector in the national economy.
As such, the interests of marginalized sectors are by tradition and history vital to national interest and therefore beneficial to the nation as a whole
because the Constitution declares a national policy recognizing the role of these sectors in the nations life. In other words, the concept of marginalized
and underrepresented sectors under the party-list scheme has been carefully refined by concrete examples involving sectors deemed to be significant in
our legal tradition. They are essentially sectors with a constitutional bond, that is, specific sectors subject of specific provisions in the Constitution,
namely, labor,5 peasant,6 urban poor,7 indigenous cultural communities,8women,9 youth,10 veterans,11 fisherfolk,12 elderly,13 handicapped,14 overseas
workers15 and professionals.16
The premise is that the advancement of the interests of these important yet traditionally and historically marginalized sectors promotes the national
interest. The Filipino people as a whole are benefited by the empowerment of these sectors.
The long-muffled voices of marginalized sectors must be heard because their respective interests are intimately and indispensably woven into the fabric
of the national democratic agenda. The social, economic and political aspects of discrimination and marginalization should not be divorced from the role
of a particular sector or group in the advancement of the collective goals of Philippine society as a whole. In other words, marginalized sectors should be
given a say in governance through the party-list system, not simply because they desire to say something constructive but because they deserve to be
heard on account of their traditionally and historically decisive role in Philippine society.

31

A Unifying Thread
Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function as official interpreter of the Constitution, the Court should
always bear in mind that judicial prudence means that it is safer to construe the Constitution from what appears upon its face. 17
With regard to the matter of what qualifies as marginalized and underrepresented sectors under the party-list system, Section 5(2), Article VI of the
Constitution mentions "the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector." On the other hand, the law speaks of "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."18
Surely, the enumeration of sectors considered as marginalized and underrepresented in the fundamental law and in the implementing law (RA 7941)
cannot be without significance. To ignore them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very first of Ang Bagong
Bayani-OFW Labor Partys eight guidelines for screening party-list participants is this: the parties, sectors or organizations "must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941."19
For this reason, I submit the majoritys decision is cryptic and wanting when it makes short shrift of the issue of whether petitioner is a marginalized and
underrepresented sector in the following manner:
The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the
Constitution and RA 7941.
The resolution of petitions for accreditation in the party-list system on a case-to-case basis not tethered to the enumeration of the Constitution and of RA
7941 invites the exercise of unbridled discretion. Unless firmly anchored on the fundamental law and the implementing statute, the party-list system will
be a ship floating aimlessly in the ocean of uncertainty, easily tossed by sudden waves of flux and tipped by shifting winds of change in societal attitudes
towards certain groups. Surely, the Constitution and RA 7941 did not envision such kind of a system.
Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941 is clearly explained in Ang Bagong
Bayani-OFW Labor Party:
"Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope.
Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim
and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in
Section 5. Concurrently, the persons nominated by the party-list candidate-organization must be "Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties."
xxx

xxx

xxx

The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing
with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the
party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require:
Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals."
While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can
be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in
connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the
meaning of a term in a statute may be limited, qualified or specialized by those in immediate association. 20(emphasis and underscoring supplied)
More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits "marginalized and underrepresented sectors" and expressly
refers to the list in Section 5 thereof:
Section 3. Definition of Terms. x x x
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy
pertains to the special interest and concerns of their sector, x x x. (emphasis supplied)
Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its charges of violation of non-establishment of religion, equal
protection, free speech and free association are all leveled at the assailed resolutions of the Commission on Elections.) Thus, petitioner admits and
accepts that its case must rise or fall based on the aforementioned provisions of RA 7941.

32

Following the texts of the Constitution and of RA 7941, and in accordance with established rules of statutory construction and the Courts
pronouncement in Ang Bagong Bayani-OFW Labor Party, the meaning of "marginalized sectors" under the party list system is limited and qualified.
Hence, other sectors that may qualify as marginalized and underrepresented should have a close connection to the sectors mentioned in the
Constitution and in the law. In other words, the marginalized and underrepresented sectors qualified to participate in the party-list system refer only to
the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
professionals and other related or similar sectors.
This interpretation is faithful to and deeply rooted in the language of the fundamental law and of its implementing statute. It is coherent with the mandate
of the Constitution that marginalized sectors qualified to participate in the party-list system but not mentioned in Section 5(2), Article VI are "such other
sectors as may be provided by law" duly enacted by Congress. It is also consistent with the basic canon of statutory construction, ejusdem generis,
which requires that a general word or phrase that follows an enumeration of particular and specific words of the same class, the general word or phrase
should be construed to include, or to be restricted to persons, things or cases, akin to, resembling, or of the same kind or class as those specifically
mentioned.21 Moreover, it reins in the subjective elements of passion and prejudice that accompany discussions of issues with moral or religious
implications as it avoids the need for complex balancing and undue policy-making.
What is the unifying thread that runs through the marginalized and underrepresented sectors under the party-list system? What are the family
resemblances that would characterize them?22
Based on the language of the Constitution and of RA 7941 and considering the pronouncements of this Court in Ang Bagong Bayani-OFW Labor Party
and BANAT, the following factors are significant:
(a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5 of RA 7941;
(b) they must be sectors whose interests are traditionally and historically regarded as vital to the national interest but they have long been
relegated to the fringes of society and deprived of an opportunity to participate in the formulation of national policy;
(c) the vinculum that will establish the close connection with or similarity of sectors to those expressly mentioned in Section 5 of RA 7941 is a
constitutional provision specifically recognizing the special significance of the said sectors (other than peoples organizations, unless such
peoples organizations represent sectors mentioned in Section 5 of RA 7941)23 to the advancement of the national interest and
(d) while lacking in well-defined political constituencies, they must have regional or national presence to ensure that their interests and agenda
will be beneficial not only to their respective sectors but, more importantly, to the nation as a whole.
For Purposes of the Party-List System,
Petitioner is Not a Marginalized Sector
In this case, petitioner asserts that it is entitled to accreditation as a marginalized and underrepresented sector under the party-list system. However, the
Commission on Elections disagrees.
The majority reverses the Commission on Elections. While it focuses on the contentious issues of morality, religion, equal protection, and freedom of
expression and association, by granting the petition, the majority effectively rules that petitioner is a qualified marginalized and underrepresented sector,
thereby allowing its accreditation and participation in the party-list system.
I disagree.
Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals and transsexuals (LGBT) is underrepresented, it cannot
be properly considered as marginalized under the party-list system. First, petitioner is not included in the sectors mentioned in Section 5(2), Article VI of
the Constitution and Section 5 of RA 7941. Unless an overly strained interpretation is resorted to, the LGBT sector cannot establish a close connection
to any of the said sectors. Indeed, petitioner does not even try to show its link to any of the said sectors. Rather, it represents itself as an altogether
distinct sector with its own peculiar interests and agenda.
Second, petitioners interest as a sector, which is basically the legal recognition of its members sexual orientation as a right, cannot be reasonably
considered as an interest that is traditionally and historically considered as vital to national interest. At best, petitioner may cite an emergent awareness
of the implications of sexual orientation on the national human rights agenda. However, an emergent awareness is but a confirmation of lack of
traditional and historical recognition.24 Moreover, even the majority admits that there is no "clear cut consensus favorable to gay rights claims."25
Third, petitioner is cut off from the common constitutional thread that runs through the marginalized and underrepresented sectors under the party-list
system. It lacks the vinculum, a constitutional bond, a provision in the fundamental law that specifically recognizes the LGBT sector as specially
significant to the national interest. This standard, implied in BANAT, is required to create the necessary link of a particular sector to those sectors
expressly mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941.
Finally, considering our history and tradition as a people, to consider the promotion of the LGBT agenda and "gay rights" as a national policy as
beneficial to the nation as a whole is debatable at best. Even the majority (aside from extensively invoking foreign practice and international conventions
rather than Philippine laws) states:
We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus favorable to gay rights claims. 26
This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are, without doubt, indisputable.

33

Regardless of the personal beliefs and biases of its individual members, this Court can only apply and interpret the Constitution and the laws. Its power
is not to create policy but to recognize, review or reverse the policy crafted by the political departments if and when a proper case is brought before it.
Otherwise, it will tread on the dangerous grounds of judicial legislation.
In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of
the said law instituted a policy when it enumerated certain sectors as qualified marginalized and underrepresented sectors under the party-list system.
Respect for that policy and fidelity to the Courts duty in our scheme of government require us to declare that only sectors expressly mentioned or closely
related to those sectors mentioned in Section 5 of RA 7941 are qualified to participate in the party-list system. That is the tenor of the Courts rulings in
Ang Bagong Bayani-OFW Labor Party and BANAT. As there is no strong reason for the Court to rule otherwise, stare decisis compels a similar
conclusion in this case.
The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather than expanding, legislative policy on the matter of
marginalized sectors as expressed in the enumeration in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2, 3(d) and 5 of
RA 7941 in the guise of interpretation. The Constitution expressly and exclusively vests the authority to determine "such other [marginalized] sectors"
qualified to participate in the party-list system to Congress. Thus, until and unless Congress amends the law to include the LGBT and other sectors in
the party-list system, deference to Congress determination on the matter is proper.
A Final Word
To be succinctly clear about it, I do not say that there is no truth to petitioners claim of discriminatory and oppressive acts against its members. I am in
no position to make that claim. Nor do I claim that petitioner has no right to speak, to assemble or to access our political departments, particularly the
legislature, to promote the interests of its constituency. Social perceptions of sexual and other moral issues may change over time, and every group has
the right to persuade its fellow citizens that its view of such matters is the best. 27 But persuading ones fellow citizens is one thing and insisting on a right
to participate in the party-list system is something else. Considering the facts, the law and jurisprudence, petitioner cannot properly insist on its
entitlement to use the party-list system as a vehicle for advancing its social and political agenda.
While bigotry, social stereotyping and other forms of discrimination must be given no place in a truly just, democratic and libertarian society, the party-list
system has a well-defined purpose. The party-list system was not designed as a tool to advocate tolerance and acceptance of any and all socially
misunderstood sectors. Rather, it is a platform for the realization of the aspirations of marginalized sectors whose interests are, by nature and history,
also the nations but which interests have not been sufficiently brought to public attention because of these sectors underrepresentation.
Congress was given by the Constitution full discretion to determine what sectors may qualify as marginalized and underrepresented. The Courts task is
to respect that legislative determination by strictly adhering to it. If we effectively and unduly expand such congressional determination, we will be
dabbling in policy-making, an act of political will and not of judicial judgment.
Accordingly, I respectfully vote to dismiss the petition.
RENATO C. CORONA
Associate Justice
SEPARATE OPINION
ABAD, J.:
I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del Castillo because I arrived at the same conclusion
following a different path.
I also felt that the Court needs, in resolving the issues in this case, to say more about what the Constitution and Republic Act (R.A.) 7941 intends in the
case of the party-list system to abate the aggravations and confusion caused by the alarming overnight proliferation of sectoral parties.
The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized and underrepresented sectors of society an opportunity to
take a direct part in enacting the laws of the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections (COMELEC), 1 the Court laid
down guidelines for accreditation, but these seem to leave the COMELEC like everyone else even more perplexed and dumbfounded about what
organizations, clubs, or associations can pass for sectoral parties with a right to claim a seat in the House of Representatives. The Court can, in
adjudicating this case, unravel some of the difficulties.
Here, I fully agree that the COMELEC erred when it denied Ang Ladlads petition for sectoral party accreditation on religious and moral grounds. The
COMELEC has never applied these tests on regular candidates for Congress. There is no reason for it to apply them on Ang Ladlad. But the ponencia
already amply and lucidly discussed this point.
What I am more concerned about is COMELECs claim in its comment on the petition that the Ang Ladlad sectoral party was not marginalized and
underrepresented since it is not among, or even associated with, the sectors specified in the Constitution and in R.A. 7941. 2 Ang Ladlad, it claims, did
not qualify as a marginalized and underrepresented group of people like those representing labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. This is effectively the COMELECs frame of mind in
adjudicating applications for accreditation.
But, the COMELECs proposition imposes an unwarranted restriction which is inconsistent with the purpose and spirit of the Constitution and the law. A
reading of Ang Bagong Bayani will show that, based on the Courts reading, neither the Constitution nor R.A. 7941 intends the excessively limited

34

coverage that the COMELEC now suggests. In fact, the Court said in that case that the list in R.A. 7941 is not exclusive. Thus, while the party-list
system is not meant for all sectors of society, it was envisioned as a social justice tool for the marginalized and underrepresented in general.
As it happened, the only clue that the Constitution provides respecting the identity of the sectors that will make up the party-list system is found in the
examples it gives, namely, the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth segments of society.
Section 5(2), Article VI of the 1987 Constitution provides:
(2) The party-list representative shall constitute twenty per centum of the total number of representatives including those under the party list.
For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be
filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,women, youth,
and such other sectors as may be provided by law, except the religious sector."(Underscoring supplied.)
Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A. 7941 a broad standard for screening and identifying
those who may qualify for the party-list system. Thus:
Sec. 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of
Representatives through a party-list system of registered regional and sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well defined
political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open
party system or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible. (Underscoring supplied.)
The above speaks of "marginalized and underrepresented sectoral parties or organizations x x x lack well defined political constituencies x x x who could
contribute to the formulation and enactment of appropriate legislation." But, as the Court said in Ang Bagong Bayani, the whole thing boils down to
ascertaining whether the party seeking accreditation belongs to the "marginalized and underrepresented." 3
Unfortunately, Congress did not provide a definition of the term "marginalized and underrepresented." Nor did the Court dare provide one in its decision
in Ang Bagong Bayani. It is possible, however, to get a sense of what Congress intended in adopting such term. No doubt, Congress crafted that term
marginalized and underrepresentedfrom its reading of the concrete examples that the Constitution itself gives of groupings that are entitled to
accreditation. These examples are the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth sectors.
Fortunately, quite often ideas are best described by examples of what they are, which was what those who drafted the 1987 Constitution did, rather than
by an abstract description of them.
For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant, and a tiger" and concluding that it is a gathering of "animals."
Here, it looked at the samples of qualified groups (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) and found a common
thread that passes through them all. Congress concluded that these groups belonged to the "marginalized and underrepresented."
So what is the meaning of the term "marginalized and underrepresented?" The examples given (labor, peasant, urban poor, indigenous cultural
minorities, women, and youth) should be the starting point in any search for definition. Congress has added six others to this list: the fisherfolk, the
elderly, the handicapped, the veterans, the overseas workers, and the professionals.4 Thus, the pertinent portion of Section 5 of R.A. 7941 provides:
Sec. 5. Registration. x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, andprofessionals.
If one were to analyze these Constitutional and statutory examples of qualified parties, it should be evident that they represent the working class (labor,
peasant, fisherfolk, overseas workers), the service class(professionals), the economically deprived (urban poor), the social outcasts (indigenous
cultural minorities), the vulnerable (women, youth) and the work impaired (elderly, handicapped, veterans). This analysis provides some understanding
of who, in the eyes of Congress, are marginalized and underrepresented.
The parties of the marginalized and underrepresented should be more than just lobby or interest groups. They must have an authentic identity that goes
beyond mere similarities in background or circumstances. It is not enough that their members belong to the same industry, speak the same dialect, have
a common hobby or sport, or wish to promote public support for their mutual interests. The group should be characterized by a shared advocacy for
genuine issues affecting basic human rights as these apply to their groups. This is in keeping with the statutory objective of sharing with them seats in
the House of Representatives so they can take part in enacting beneficial legislation.
It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by examples a sense of what the qualified organizations
should look like. As the Court acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there are groups which are pushed
to the margin because they advocate an extremist political ideology, such as the extreme right and the extreme left of the political divide. They may be
regarded, if the evidence warrants, as qualified sectors.
Further, to qualify, a party applying for accreditation must represent a narrow rather than a specific definition of the class of people they seek to
represent. For example, the Constitution uses the term "labor," a narrower definition than the broad and more abstract term, "working class," without
slipping down to the more specific and concrete definition like "carpenters," "security guards," "microchips factory workers," "barbers," "tricycle drivers,"
and similar sub-groupings in the "labor" group. See the other illustrations below.
Broad
Definition

*Narrow
Definition

Specifically Defined Groups

35

Working Class

Labor

Carpenters,
security
factory workers, barbers, tricycle drivers

Economically
Deprived

Urban
Poor

Informal settlers, the jobless, persons displaced by domestic wars

The Vulnerable

Women

Working
victims of slavery

Work Impaired

HandiCapped

Deaf and dumb, the blind, people on wheelchairs

women,

guards,

battered

microchip

women,

*The definition that the Constitution and R.A. 7941 use by their examples.
Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the party-list system is the second, the narrow definition of the
sector that the law regards as "marginalized and underrepresented." The implication of this is that, if any of the sub-groupings (the carpenters, the
security guards, the microchips factory workers, the barbers, the tricycle drivers in the example) within the sector desires to apply for accreditation as a
party-list group, it must compete with other sub-groups for the seat allotted to the "labor sector" in the House of Representatives. This is the apparent
intent of the Constitution and the law.
An interpretation that will allow concretely or specifically defined groups to seek election as a separate party-list sector by itself will result in riot and
redundancy in the mix of sectoral parties grabbing seats in the House of Representatives. It will defeat altogether the objectives of the party-list system.
If they can muster enough votes, the country may have a party-list of pedicab drivers and another of tricycle drivers. There will be an irrational
apportionment of party-list seats in the legislature.
In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list system must state if they are to be considered as
national, regional, or sectoral parties. Thus:
Sec. 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system
by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire
to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, x
x x.
This provision, taken alongside with the territorial character of the sample sectors provided by the Constitution and R.A. 7941, indicates that every
sectoral party-list applicant must have an inherently regional presence(indigenous cultural minorities) or a national presence (all the rest).
The people they represent are not bound up by the territorial borders of provinces, cities, or municipalities. A sectoral group representing the sugar
plantation workers of Negros Occidental, for example, will not qualify because it does not represent the inherently national character of the labor sector.
Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it represents the marginalized and underrepresented. That is
easy to do. The party must factually and truly represent the marginalized and underrepresented. It must present to the COMELEC clear and convincing
evidence of its history, authenticity, advocacy, and magnitude of presence. The COMELEC must reject those who put up building props overnight as in
the movies to create an illusion of sectoral presence so they can get through the door of Congress without running for a seat in a regular legislative
district.
In sum, to qualify for accreditation:
One, the applying party must show that it represents the "marginalized and underrepresented," exemplified by the working class, the service
class, the economically deprived, the social outcasts, the vulnerable, the work impaired, or some such similar class of persons.
Two, the applying party should be characterized by a shared advocacy for genuine issues affecting basic human rights as these apply to the
sector it represents.
Three, the applying party must share the cause of their sector, narrowly defined as shown above. If such party is a sub-group within that
sector, it must compete with other sub-groups for the seat allocated to their sector.
Four, the members of the party seeking accreditation must have an inherent regional or national presence.
And five, except for matters the COMELEC can take judicial notice of, the party applying for accreditation must prove its claims by clear and
convincing evidence.
In this case, Ang Ladlad represents men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered persons (LGBTs). Applying
the universally accepted estimate that one out of every 10 persons is an LGBT of a certain kind, 5 the Filipino LGBTs should now stand at about 8.7
million. Despite this, however, they are by and large, subtly if not brutally, excluded from the mainstream, discriminated against, and persecuted. That
the COMELEC denied Ang Ladlads petition on religious and moral grounds is proof of this discrimination.
Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been documented. At home, effeminate or gay youths are subjected
to physical abuse by parents or guardians to make them conform to standard gender norms of behavior, while lesbian youths are raped to cure them of

36

their perceived affliction. LGBTs are refused admission from certain schools, or are suspended and put on probation. Meanwhile, in the workplace, they
are denied promotions or benefits which are otherwise available to heterosexuals holding the same positions. There is bigotry for their group.
Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their members are in the vulnerable class like the women
and the youth. Ang Ladlad represents a narrow definition of its class (LGBTs) rather than a concrete and specific definition of a sub-group within the
class (group of gay beauticians, for example). The people that Ang Ladlad seeks to represent have a national presence.
The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, sisters, friends, or colleagues who have suffered in
silence all these years. True, the party-list system is not necessarily a tool for advocating tolerance or acceptance of their practices or beliefs. But it does
promise them, as a marginalized and underrepresented group, the chance to have a direct involvement in crafting legislations that impact on their lives
and existence. It is an opportunity for true and effective representation which is the very essence of our party-list system.
For the above reasons, I vote to GRANT the petition.
ROBERTO A. ABAD
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila

37

EN BANC
G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 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 cover those 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].

38

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 non-surrender 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 theAgreement 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 theRome 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 theRome 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 Agreement is 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.

39

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 the Agreement 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
cases22 and Kilosbayan v. Guingona, Jr.23In 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 the Agreement.
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 Non-Surrender 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

40

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.36Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrencerequirement 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,41holding 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 servanda42 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 treaty-implementing 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
Constitution46when 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 Adolfo47 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

41

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 8952 and 9053 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
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 idem56 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
Cooperation
and consent to surrender

with

respect

to

waiver

of

98
immunity

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.

42

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 in Nicolas v. Romulo59a 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 long-recognized 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. x x x
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
with Principles of International Law

Immoral/Not

at

Variance

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 Philippines of 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 the Philippines 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.

43

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 treatymaking 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 the Philippines 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 US national 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 the Agreement 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.

44

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, theAgreement 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 theAgreement.
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 word "may." 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.1avvphi1
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.
Romulo74 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;

45

(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.801avvphi1
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
Genocide

US Law
6 1091. Genocide

(a) Basic Offense Whoever, whether in the time of peace


For the purpose of this Statute, "genocide" means any of or in time of war and with specific intent to destroy, in whole
the following acts committed with intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious
or in part, a national, ethnical, racial or religious group, as group as such
such:
(1) kills members of that group;
(a) Killing members of the group;
(2) causes serious bodily injury to members of that group;
(b) Causing serious bodily or mental harm to members of
the group;

(3) causes the permanent impairment of the mental faculties


of members of the group through drugs, torture, or similar
(c) Deliberately inflicting on the group conditions of life techniques;
calculated to bring about its physical destruction in whole or
in part;
(4) subjects the group to conditions of life that are intended

46

(d) Imposing measures intended to prevent births within the to cause the physical destruction of the group in whole or in
group;
part;
(e) Forcibly transferring children of the group to another (5) imposes measures intended to prevent births within the
group.
group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).
Article
War Crimes

8 (d) Definition As used in this Section the term "war crime"


means any conduct

2. For the purpose of this Statute, "war crimes" means:

(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
(a) Grave breaches of the Geneva Conventions of 12
party;
August 1949, namely, any of the following acts against
persons or property protected under the provisions of the
relevant Geneva Convention: x x x84
(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;
(b) Other serious violations of the laws and customs
applicable in international armed conflict, within the
established framework of international law, namely, any of (3) Which constitutes a grave breach of common Article 3
the following acts:
(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
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:

(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

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.
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 Habana89 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.

47

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 the US 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

48

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. 117Like 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 Non-Surrender 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
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

ANTONIO EDUARDO B. NACHURA


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

49

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
1

Rollo, pp. 241-265.

He is now the DFA Secretary.

Rollo, pp. 74-145.

Rome Statute, Art. 1.

Id., Art. 5.

ROME STATUTE, Article 125.

Rollo, pp. 68-69.

Id. at 72, Paper on the RP-US Non-Surrender Agreement.

Id. at 70.

10

Id. at 175.

11

Id. at 25-27.

12

Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay & Corn Planters Association, No. L-24022, March 3, 1965, 13
SCRA 377; Araneta v. Dinglasan, 84 Phil. 368 (1949).
13

David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.

14

Jumamil v. Caf, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August
15, 2000, 338 SCRA 81.
15

Id.

16

Id.

17

Farias v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417 SCRA 503; citing Baker v. Carr, 369 U.S. 186 (1962). See
also Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733.
18

Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 & 155661, May 5, 2003, 402 SCRA 612.

19

Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan, Jr., supra note 18; Del Mar v. Philippine Amusement and Gaming
Corporation, G.R. No. 138298, November 29, 2000, 346 SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243 SCRA 436; Kilosbayan v.
Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.

50

20

G.R. No. 160261, November 10, 2003, 415 SCRA 45.

21

Id. at 136-137.

22

Supra note 12.

23

Supra note 19.

24

G.R. No. 138587, October 10, 2000, 342 SCRA 2000.

25

G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.

26

Cruz, Philippine Political Law 55 (1995).

27

Harris, Cases and Materials on International Law 801 (2004).

28

Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v. Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720.

29

Abaya v. Ebdane, supra.

30

Id.; citing The Constitutionality of Trade Agreement Acts by Francis Sayre.

31

Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961).

32

Executive Order No. 459, dated November 25, 1997, contains a similar definition.

33

B.A. Boczek, International Law: A Dictionary 346 (2005).

34

Bayan v. Zamora, supra note 24; citing Richard Erickson, "The Making of Executive Agreements by the US Department of Defense," 13 Boston U. Intl.
L. J. 58 (1955); Randall, The Treaty Power, 51 Ohio St. L.J., p. 4; see also Restatement (Third) of Foreign Relations Law 301 (1987), which states that
"[t]he terminology used for international agreements is varied. Among the terms used are: treaty, convention, agreement, protocol, covenant, charter,
statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, memorandum of understanding, and modus
vivendi. Whatever their designation, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion
indicate otherwise." (Emphasis supplied.)
35

Id. at 489; citing 5 Hackworth, Digest of International Law 395; cited in USAFE Veterans Association Inc. v. Treasurer of the Philippines, 105 Phil.
1030, 1037 (1959).
36

Reid v. Covert, 354 U.S. 77 S. Ct.1230.

37

In the US constitutional system, it is the legal force of treaties and executive agreements on the domestic plane.

38

Henkin, Foreign Affairs and the United States Constitution 224 (2nd ed., 1996).

39

Prof. Edwin Borchard, Treaties and Executive Agreements Reply, Yale Law Journal, June 1945; cited in Justice Antonio T. Carpios Dissent in
Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438.
40

No. L-14279, October 31, 1961, 3 SCRA 351, 356.

41

No. L-30650, July 31, 1970, 34 SCRA 166.

42

Latin for "agreements must be kept," Blacks Law Dictionary (8th ed., 2004). The principle of pacta sunt servanda, in its most common sense, refers to
private contracts, stressing that these pacts and clauses are the law between the parties, and implying that the non-fulfilment of respective obligations is
a breach of the pact.
With regard to international agreements, Art. 26 of the Vienna Convention on the Law of Treaties (signed on May 23, 1969 and entered into force
on January 27, 1980) states that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." Pacta sunt
servanda is based on good faith. This entitles states to require that obligations be respected and to rely upon the obligations being respected. This goodfaith basis of treaties implies that a party to the treaty cannot invoke provisions of itsdomestic law as justification for a failure to perform. The only limit
to pacta sunt servanda is jus cogens(Latin for "compelling law"), the peremptory norm of general international law.
43

Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YLJ 140, 152 (2009).

44

Rotunda, Nowak and Young, Treatise on Constitutional Law 394; cited in then Chief Justice Punos dissent in Bayan v. Zamora, supra.

51

45

Nicolas, supra note 39.

46

Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement] foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate, and when Congress so requires, ratified x x x in a national referendum held for that
purpose, and recognized as a treaty by the contracting state.
47

Supra note 39.

48

Supra note 41.

49

Supra note 31.

50

Article 27 Irrelevance of official capacity

51

. This Statue shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar
the Court from exercising its jurisdiction over such a person.
[51] Article
General Obligation to Cooperate

86

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within
the jurisdiction of the Court.
52

Article 89

Surrender of persons to the Court


1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to
any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person.
States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and
surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of neb is in idem as provided in article
20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is
admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone
the execution of the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the
Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in
subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided
that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received
within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to
the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.
53

Article 90 Competing requests

52

1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other
State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the persons surrender,
notify the Court and the requesting State of that fact.
2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that
determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the requested States notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court
under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has
determined that the case is inadmissible. The Courts determination shall be made on an expedited basis.
4. If 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, if the Court has determined that the case is inadmissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal
with the request for extradition from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the
requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the
requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and
of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of
the same person for conduct other than that which constitutes the crime for which the Court seeks the persons surrender:
(a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the
request from the Court;
(b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to
surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the
relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the
conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting
State is refused, the requested State shall notify the Court of this decision.
54

Tenth preambular paragraph of the ICC Statute.

55

1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out
the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless
the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article
20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
56

Latin for "not twice for the same," a legal principle that means no legal action can be instituted twice for the same cause of action. In gist, it is a legal
concept substantially the same as or synonymous to double jeopardy.

53

57

A state is obliged to refrain from acts that would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the
treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is
not unduly delayed.
58

Vienna Convention on the Law of Treaties, Art. 18.

59

Supra note 39.

60

Constitution, Art. II, Sec. 2.

61

Taada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.

62

Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, Public International Law 222-223 (2006).

63

Rollo, pp. 53-54.

64

Under Vienna Convention on the Law of Treaties, Art. 18, a State has the obligations not to defeat the object and purpose of a treaty prior to its entry
into force when (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it
shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry
into force of the treaty and provided that such entry into force is not unduly delayed.
65

Bayan v. Zamora, supra.

66

Id.; citing Commissioner of Customs, supra.

67

G.R. No. 158088, July 6, 2005, 462 SCRA 622.

68

Id. at 637-638; citing Cruz, International Law 174 (1998).

69

Signature, ratification, acceptance, approval or accession.

1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on
17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the
Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be
deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.
70

RA 9851, Secs. 4-6.

71

Id., Secs. 7-12.

72

Id., Secs. 17-18.

73

Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.

74

Supra note 39.

75

456 U.S. 25 (1982).

76

Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA 438, 467.

77

G.R. No. 178830, July 14, 2008, 558 SCRA 329.

78

Id. at 376. (Emphasis supplied.)

79

Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995 (emphasis supplied).

80

18 U.S.C.A. 2441.

54

81

18 U.S.C.A. 1091.

82

Malcolm Shaw, International Law 112 (2008).

83

Victoria K. Holt and Elisabeth W. Dallas, "On Trial: The US Military and the International Criminal Court," The Henry L. Stimson Center, Report No. 55,
March 2006, p. 92; available at <http://www.stimson.org/images/uploads/research-pdfs/US_Military_and_the_ICC_FINAL_website.pdf> last visited
January 27, 2011. We quote Holt and Dallas profiles from the report:
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs the Future of Peace Operations program. She has coauthored a study of peacekeeping reforms at the United Nations, analyzing the implementation of the 2000 Brahimi Report recommendations, and
recently completed reports on African capacity for peace operations and the protection of civilians by military forces. Ms. Holt joined the Stimson Center
in 2001, bringing policy and political expertise on UN and peacekeeping issues from her work at the US Department of State, in the NGO community and
on Capitol Hill. She served as Senior Policy Advisor at the US State Department (Legislative Affairs), where she worked with Congress on issues
involving UN peacekeeping and international organizations. Prior to joining State, she was Executive Director of the Emergency Coalition for US
Financial Support of the United Nations, and also directed the Project on Peacekeeping and the UN at the Center for Arms Control and Nonproliferation
in Washington, DC. From 1987 to 1994, Ms. Holt worked as a senior Congressional staffer, focusing on defense and foreign policy issues for the House
Armed Services Committee. She served as Legislative Director for Rep. Thomas H. Andrews and as Senior Legislative Assistant to Rep. George J.
Hochbrueckner. Ms. Holt is a graduate of the Naval War College and holds a B.A. with honors from Wesleyan University.
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Centers Future of Peace Operations program and is focusing her work on the
restoration of the rule of law in post-conflict settings. In particular, she is analyzing what legal mechanisms are required to allow for international criminal
jurisdiction within UN peace operations. Prior to working at the Stimson Center, Ms. Dallas was a Senior Fellow with the Public International Law &
Policy Group in Washington, DC, where she served as a political and legal advisor for parties during international peace negotiations taking place in the
Middle East, the Balkans and South Asia. Ms. Dallas earned an MA from Tufts Universitys Fletcher School of Law & Diplomacy with a concentration in
International Negotiation & Conflict Resolution and Public International Law, as well as a Certificate in Human Security and Rule of Law. She earned her
BA from Haverford College. (Emphasis supplied.)
84

( i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;


(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
85

(d) Common Article 3 violations.

(1) Prohibited conduct In subsection (c)(3), the term "grave breach of common Article 3" means any conduct (such conduct constituting a grave breach
of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain
or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of
obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious
physical or mental pain or suffering (other than pain or suffering incidental to lawful sanction), including serious physical abuse, upon another within his
custody or control.
(C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to subject, one or more person within his custody or
physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or
persons.
(D) Murder. The act of a person who intentionally or unintentionally in the course of committing any other offense under this subsection, one or more
persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming. The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or
unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including
those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by
permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

55

(F) Intentionally causing serious bodily injury. The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to
one or more persons, including lawful combatants, in violation of the law of war.
(G) Rape. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a
person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse. The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in
sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
(I) Taking hostages. The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain
such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an
explicit or implicit condition for the safety or release of such person or persons.
(2) Definitions. In the case of an offense under subsection (a) by reason of subsection (c)(3)
(A) the term "severe mental pain or suffering" shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that
term in section 2340 (2) of this title;
(B) the term "serious bodily injury" shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b)(2)
of this title;
(C) the term "sexual contact" shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this
title;
(D) the term "serious physical pain or suffering" shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) a significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
(E) the term "serious mental pain or suffering" shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term "severe
mental pain or suffering" (as defined in section 2340(2) of this title), except that
(i) the term "serious shall replace the term "sever" where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term "serious and non-transitory mental harm
(which need not be prolonged)" shall replace the term "prolonged mental harm" where it appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack. The intent specified for the conduct stated in
subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (A) by reasons of
subsection (C)(3) with respect to
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange. Paragraph (1)(I) does not apply to an offense under subsection (A) by reason of subsection
(C)(3) in the case of a prisoner exchange during wartime.
(5) Definition of grave breaches. The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full
scope of United States obligations under that Article.
86

18 U.S.C.A. 2441.

87

Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at 7.

88

Id. at 35.

89

175 U.S. 677, 20 S.Ct. 290 (1900).

56

90

Id. at 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95, 108, 125, 126, 16 Sup. Ct. Rep. 139.

91

14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).

92

11 U.S. (7 Cranch) 32 (1812).

93

Jordan J. Paust, Customary International Law and Human Rights Treaties are Law of the United States, 20 MIJIL 301, 309 (1999).

94

11 U.S. (7 Cranch) 32, 32 (1812).

95

"x x x [C]ustomary international law is part of the law of the United States to the limited extent that, 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." U.S. v. Yousef, 327 F.3d 56, 92
(2003).
96

317 U.S. 1 (1942).

97

Id. at 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3
Cranch 458, 488, 2 L.Ed. 498; Fitzsimmons v. Newport Ins. Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch 155, 159-164, 3 L.Ed. 520; The
St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447,
448, 4 L.Ed. 428; United States v. Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666, 667, 687, 17 L.Ed. 459;
The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall. 377, 18 L.Ed. 583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman
v. Tennessee, 97 U.S. 509, 517, 24 L.Ed. 1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490, 492, 30 L.Ed. 634; Juragua Iron Co. v.
United States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.
98

Id. at 29-30.

99

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Merits, I.C.J. judgment, February 26, 2007, 161; M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law &
Contemp. Probs. 63, 68.
100

I.C.J. Statute, art. 38, 1 (b) international custom, as evidence of a general practice accepted as law.

101

North Sea Continental Shelf, 1969 I.C.J. 77; cited in Patrick Simon S. Perillo, Transporting the Concept of Creeping Expropriation from De Lege
Ferenda to De Lege Lata: Concretizing the Nebulous Under International Law, 53 Ateneo L.J. 434, 509-510 (2008).
102

North Sea Continental Shelf, 1969 I.C.J. 77; D.J. Harris, Cases and Materials on International Law, 22 (2004).

103

North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).

104

Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate opinion).

105

North Sea Continental Shelf, 1969 I.C.J. 77.

106

M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 67.

107

Id.

108

Id.

109

Carlee M. Hobbs, The Conflict Between the Alien Tort Statute Litigation and Foreign Amnesty Laws, 43 Vand. J. Transnatl L. 505, 521 (2009-2010);
citing Jeffrey L. Dunoff, et al., International Law: Norms, Actors Process 58-59 (2d ed., 2006).
110

Id.; citing Jeffrey L. Dunoff et al., International Law: Norms, Actors Process 380 (2d ed., 2006).

111

Id.

112

Id.

113

Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.

114

See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).

115

<http://www.nationsonline.org oneworld /states.org> (last visited October 18, 2010). The list does not include dependent territories.

57

116

Joaquin G. Bernas, S.J., An Introduction to Public International Law 10-13 (2002); cited inPharmaceutical and Health Care Association of the
Philippines v. Duque III, supra note 113, at 292.
117

Pharmaceutical and Health Care Association of the Philippines, supra note 113, at 290-291; citation omitted.

118

Article 12. Preconditions to the exercise of jurisdiction.

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or
have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of
registration of that vessel or aircraft.
(b) The State of which the person accused of the crime is a national.
119

Rome Statute of the International Criminal Court, Art. 25, par. 2.

120

G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.

DISSENTING OPINION
CARPIO, J.:
I dissent.
The RP-US Non-Surrender Agreement (Agreement) violates existing municipal laws on the Philippine States obligation to prosecute persons
responsible for any of the international crimes of genocide, war crimes and other crimes against humanity. Being a mere executive agreement that is
indisputably inferior to municipal law, the Agreement cannot prevail over a prior or subsequent municipal law inconsistent with it.
First, under existing municipal laws arising from the incorporation doctrine in Section 2, Article II of the Philippine Constitution, 1 the State is required to
surrender to the proper international tribunal persons accused of grave international crimes, if the State itself does not exercise its primary jurisdiction to
prosecute such persons.
Second, and more importantly, Republic Act No. 9851 (RA 9851) or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity requires that the RP-US Non-Surrender Agreement, which is in derogation of the duty of the Philippines to prosecute
those accused of grave international crimes, should be ratified as a treaty by the Senate before the Agreement can take effect.
Section 2 of RA 9851 adopts as a State policy the following:
Section 2. Declaration of Principles and State Policies. (a) x x x
xxx
(e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be
ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the
prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes .
(Emphasis supplied)
To implement this State policy, Section 17 of RA 9851 provides:
Section 17. Jurisdiction. - The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and
penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met:
(a) The accused is a Filipino citizen;

58

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or


(c) The accused has committed the said crime against a Filipino citizen.
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 the Philippines to the appropriate international court, if any, or to
another State pursuant to the applicable extradition laws and treaties. (Boldfacing, italicization and underscoring supplied)
Section 2(e) and Section 17 impose on the Philippines the "duty" to prosecute a person present in the Philippines, "regardless of citizenship or
residence" of such person, who is accused of committing a crime under RA 9851 "regardless of where the crime is committed." The Philippines is
expressly mandated by law to prosecute the accused before its own courts.
If the Philippines decides not to prosecute such accused, the Philippines has only two options. First, it may surrender the accused to the "appropriate
international court" such as the International Criminal Court (ICC). Or second, it may surrender the accused to another State if such surrender is
"pursuant to the applicable extradition laws and treaties." Under the second option, the Philippines must have an applicable extradition law with the
other State, or both the Philippines and the other State must be signatories to an applicable treaty. Such applicable extradition law or treaty must not
frustrate the Philippine State policy, which embodies a generally accepted principle of international law, that it is "the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes."
In any case, the Philippines can exercise either option only if "another court or international tribunal isalready conducting the investigation or
undertaking the prosecution of such crime." In short, the Philippines should surrender the accused to another State only if there is assurance or
guarantee by the other State that the accused will be prosecuted under the other State's criminal justice system. This assurance or guarantee springs
from the principle of international law that it is "the duty of every State to exercise its criminal jurisdiction over those responsible for international
crimes."
There is at present no "applicable" extradition law or treaty allowing the surrender to the United States of U.S. nationals accused of crimes
under RA 9851, specifically, Crimes against International Humanitarian Law or War Crimes,2 Genocide,3 and Other Crimes against Humanity.4
The RP-US Extradition Treaty cannot be considered an applicable extradition law or treaty. Paragraph 1, Article 2 of the RP-US Extradition Treaty
provides: "An offense shall be an extraditable offense if it is punishable under the laws in both Contracting Parties xxx."5
The rule in the United States is that a person cannot be tried in the federal courts for an international crime unless the U.S. Congress adopts a law
defining and punishing the offense.6 In Medellin v. Texas,7 the U.S. Supreme Court held that "while treaties may comprise international
commitments ... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention
that it be self-executing and is ratified on these terms." The U.S. Congress has not enacted legislation to implement the Geneva Conventions of
1949 (Geneva Conventions)8 which is one of the foundations of the principles of International Humanitarian Law. While the U.S. Senate has ratified the
Geneva Conventions,9 the ratification was not intended to make the Geneva Conventions self-executing under U.S. domestic law.10
The United States has not ratified the Rome Statute of International Criminal Court (Rome Statute). While the Philippines has also not ratified the Rome
Statute, it has criminalized under RA 9851 all the acts defined in the Rome Statute as Genocide, War Crimes and Other Crimes against Humanity. There
is no similar legislation in the United States.
Not all crimes punishable under the Rome Statute are considered crimes under U.S. laws. A report 11 based partly on interviews with representatives of
the U.S. delegation in Rome stated: "The domestic laws of the United States xxx do not cover every crime listed within the jurisdiction of the
[International Criminal] Court."12 The report further explained the gap between the definitions of Genocide, War Crimes and Other Crimes against
Humanity, under the Rome Statute and under U.S. domestic laws, in this wise:13
ICC Statute in Contrast to the US Code
In conversations with both proponents and opponents of the Court, many suggested that while the US has objected to the Courts potential authority
over US service members, what really lies behind that concern is the recognition that those most vulnerable to the scrutiny of the Court are notably
higher up in the chain of command: the civilian and senior military leadership.
Legal experts, both in the military and outside, pointed out that there were more likely to be "gaps" between the US Code and the Rome Statute than
gaps with the Uniform Code of Military Justice. After retirement, military personnel are not covered by the UCMJ, but instead would be held accountable
to the US Code, in particular Title 10 and Title 18. For some retired military personnel, this was an area of some concern.
These individuals offered that former leaders, in particular the "Henry Kissingers of the world," are most at risk. Indeed, they stressed that as
the main concern for the US: that the Court will take up cases of former senior civilian leadership and military officials who, acting under the
laws of war, are no longer covered by the UCMJ and therefore, potentially open to gaps in federal law where the US ability to assert
complementarity is nebulous. The fear is that they could be subject to ICC prosecution for actions they did previously in uniform.
One legal scholar pointed out that several crimes defined within the Rome Statute do not appear on the US books (e.g., apartheid,
persecution, enslavement, and extermination.) While similar laws exist, it would be within the competency of the Chief Prosecutor to argue
before the Pre-Trial Chamber14 that in fact, the US does not have laws to prosecute for the crimes that have been committed . A similar situation
arose in 1996, when Congressman Walter Jones (R-NC) determined through a series of investigations that civilians serving overseas under a contract

59

with the US military were not covered under the UCMJ. It had been assumed that the US Code gave US primacy over civilians serving in a military
capacity, but instead it was discovered that if a civilian serving with a military unit deployed overseas is accused of war crime, the foreign state whose
territory the crimes were committed in would in fact have primary jurisdiction to try the case. Therefore, Rep. Jones authored the "War Crimes Act of
1996," which was designed to cover civilian serving in a military capacity.15
To ensure that no gaps exist between the US Code, the UCMJ, and the crimes within the Courts jurisdiction, a similar effort could be made.
This process would need to identify first where crimes exist in the Statute that are not covered in some context through Title 10 and Title 18 of
the US Code and then draft legislation modeled after the War Crimes Act designed to fill gaps. This would protect former US service
members and senior civilian leadership from ICC prosecution.
There is very little discussion today about the gaps in law. Scholars are aware of the potential gaps and see this area as one where the US might be able
to move forward to clarify legal ambiguities that may exist, and to make corrections to US laws. This exercise would strengthen the US assertion of
complementarity. (Emphasis supplied)
The same report added, "At Rome, the U.S. was concerned with the definition of crimes, especially the definition of war crimes and, to lesser extent, the
definition of crimes against humanity xxx;" 16 that the crime of genocide was acceptable to the U.S. delegation; and that throughout the negotiations, the
U.S. position was to seek one hundred percent assurance that U.S. service members would only be held accountable to U.S. systems of justice. 17
With the existing gap between the crimes of Genocide, War Crimes and Other Crimes against Humanity under the Rome Statute - now all criminalized in
the Philippines under RA 9851 on the one hand, and U.S. domestic laws on the other, these crimes cannot be considered "punishable under the laws
in both Contracting Parties" as required under the RP-US Extradition Treaty, and hence, cannot be considered as extraditable offenses under the
treaty. The crimes considered as Genocide, War Crimes, and Other Crimes against Humanity under the Rome Statute and RA 9851 may not necessarily
be considered as such crimes under United States laws. Consequently, the RP-US Extradition Treaty does not qualify as an "applicable"extradition
law or treaty under Section 17 of RA 9851, which allows the Philippines to surrender to another state a person accused of Genocide, War Crimes and
Other Crimes against Humanity. In short, the Philippines cannot surrender to the United States a U.S. national accused of any of these grave
international crimes, when the United States does not have the same or similar laws to prosecute such crimes.
Neither is the RP-US Non-Surrender Agreement an "applicable" extradition law or treaty as required in Section 17 of RA 9851. Thus, the Agreement
cannot be implemented by the Philippine Government in the absence of an applicable extradition law or treaty allowing the surrender to the United
States of U.S. nationals accused of crimes under RA 9851.
If a U.S. national is under investigation or prosecution by an international tribunal for any crime punishable under RA 9851, the Philippines has the option
to surrender such U.S. national to the international tribunal if the Philippines decides not to prosecute such U.S. national in the Philippines. This option of
the Philippine Government under Section 17 of RA 9851 is not subject to the consent of the United States. Any derogation from Section 17, such as
requiring the consent of the United States before the Philippines can exercise such option, requires an amendment to RA 9851 by way of
either an extradition law or treaty. Such an amendment cannot be embodied in a mere executive agreement or an exchange of notes such as
the assailed Agreement.
Section 17 of RA 9851 has clearly raised to a statutory level the surrender to another State of persons accused of any crime under RA 9851. Any
agreement in derogation of Section 17, such as the surrender to the U.S. of a U.S. national accused of an act punishable under RA 9851 but not
punishable under U.S. domestic laws, or the non-surrender to an international tribunal, without U.S. consent, of a U.S. national accused of a crime under
RA 9851, cannot be made in a mere executive agreement or an exchange of notes. Such surrender or non-surrender, being contrary to Section 17
of RA 9851, can only be made in an amendatory law, such as a subsequent extradition law or treaty.
Moreover, Section 17 of RA 9851 allows the surrender to another State only "if another court xxx is alreadyconducting the investigation or
undertaking the prosecution of such crime." This means that only if the other State is already investigating or prosecuting the crime can the
Philippines surrender the accused to such other State. The RP-US Non-Surrender Agreement does not require that the United States must already be
investigating or prosecuting the crime before the Philippines can surrender the accused. In fact, a U.S. national accused of a crime under RA 9851 may
not even be chargeable of such crime in the U.S. because the same act may not be a crime under U.S. domestic laws. In such a case, the U.S. cannot
even conduct an investigation of the accused, much less prosecute him for the same act. Thus, the RP-US Non-Surrender Agreement violates the
condition in Section 17 of RA 9851 that the other State must already be investigating or prosecuting the accused for the crime penalized under RA 9851
before the Philippines can surrender such accused.
To repeat, the assailed Agreement prevents the Philippines, without the consent of the United States, from surrendering to any international tribunal
U.S. nationals accused of crimes under RA 9851. Such consent is not required under RA 9851which mandates that any non-surrender without the
consent of another State must be embodied in an extradition law or treaty. The assailed Agreement also dispenses with the condition in Section 17 that
before the Philippines can surrender the accused to the United States, the accused must already be under investigation or prosecution by the United
States for the crime penalized under RA 9851, a condition that may be impossible to fulfill because not all crimes under RA 9851 are recognized as
crimes in the United States. Thus, the Agreement violates Section 17 of RA 9851 as well as existing municipal laws arising from the
incorporation doctrine of the Constitution. The Agreement cannot be embodied in a simple executive agreement or an exchange of notes, but must
be implemented through an extradition law or a treaty ratified with the concurrence of at least two-thirds of all the members of the Senate.
In international law, there is no difference between treaties and executive agreements on their binding effect upon party states, as long as the
negotiating functionaries have remained within their powers. 18 However, while the differences in nomenclature and form of various types of international
agreements are immaterial in international law, they have significance in the municipal law of the parties. 19 An example is the requirement of
concurrence of the legislative body with respect to treaties, whereas with respect to executive agreements, the head of State may act alone to enforce
such agreements.20
The 1987 Philippine Constitution provides: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate." 21 This express constitutional requirement makes treaties different from executive agreements, which require no
legislative concurrence.

60

An executive agreement can only implement, and not amend or repeal, an existing law. As I have discussed in Suplico v. National Economic and
Development Authority,22 although an executive agreement has the force and effect of law, just like implementing rules of executive agencies, it cannot
amend or repeal prior laws, but must comply with the laws it implements. 23 An executive agreement, being an exclusive act of the Executive branch,
does not have the status of a municipal law. 24 Acting alone, the Executive has no law-making power; and while it has rule-making power, such power
must be exercised consistent with the law it seeks to implement. 25
Thus, an executive agreement cannot amend or repeal a prior law, but must comply with State policy embodied in an existing municipal
law.26 This also means that an executive agreement, which at the time of its execution complies with then existing law, is deemed amended or
repealed by a subsequent law inconsistent with such executive agreement. Under no circumstance can a mere executive agreement prevail
over a prior or subsequent law inconsistent with such executive agreement.
This is clear from Article 7 of the Civil Code, which provides:
Article 7. x x x
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis
supplied)
An executive agreement like the assailed Agreement is an executive act of the President. Under Article 7 of the Civil Code, an executive
agreement contrary to a prior law is void. Similarly, an executive agreement contrary to a subsequent law becomes void upon the effectivity of such
subsequent law. Since Article 7 of the Civil Code provides that "executive acts shall be valid only when they are not contrary to the laws," once an
executive act becomes contrary to law such executive act becomes void even if it was valid prior to the enactment of such subsequent law.
A treaty, on the other hand, acquires the status of a municipal law upon ratification by the Senate. Hence, a treaty may amend or repeal a prior law
and vice-versa.27 Unlike an executive agreement, a treaty may change state policy embodied in a prior and existing law.
In the United States, from where we adopted the concept of executive agreements, the prevailing view is that executive agreements cannot alter
existing law but must conform to all statutory requirements.28 The U.S. State Department made a distinction between treaties and executive
agreements in this manner:
x x x it may be desirable to point out here the well-recognized distinction between an executive agreement and a treaty. In brief, it is that the former
cannot alter the existing law and must conform to all statutory enactments, whereas a treaty, if ratified by and with the advice and consent of twothirds of the Senate, as required by the Constitution, itself becomes the supreme law of the land and takes precedence over any prior statutory
enactments.29 (Emphasis supplied)
The Agreement involved in this case is an executive agreement entered into via an exchange of notes. 30 The parties to the Agreement (RP and US)
agree not to surrender each others nationals 31 to any international tribunal or to a third party for the purpose of surrendering to any international
tribunal, without the others consent, pursuant to the pronounced objective of "protect[ing] Philippine and American personnel from frivolous and
harassment suits that might be brought against them in international tribunals." 32 The Agreement amends existing Philippine State policy as
embodied in municipal law arising from generally accepted principles of international law which form part of the law of the land . The
Agreement also runs counter to RA 9851 which criminalized wholesale all acts defined as international crimes in the Rome Statute, an international
treaty which the Philippines has signed but has still to ratify.33 The Agreement frustrates the objectives of generally accepted principles of international
law embodied in the Rome Statute. Thus, considering its nature, the Agreement should be embodied not in an executive agreement, but in a treaty
which, under the Philippine Constitution, shall be valid and effective only if concurred in by at least two-thirds of all the members of the Senate.
The 1987 Philippine Constitution states as one of its principles, as follows:
The Philippines x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.34
This constitutional provision enunciates the doctrine of incorporation which mandates that the Philippines is bound by generally accepted principles of
international law which automatically form part of Philippine law by operation of the Constitution. 35
In Kuroda v. Jalandoni,36 this Court held that this constitutional provision "is not confined to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or shall be a signatory." The pertinent portion of Kuroda states:
It cannot be denied that the rules and regulation of The Hague and Geneva Conventions form part of and are wholly based on the generally
accepted principles of international law. x x x Such rule and principles, therefore, form part of the law of our nation even if the Philippines was
not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined
to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a
signatory.37 (Emphasis supplied)
Hence, generally accepted principles of international law form part of Philippine laws even if they do not derive from treaty obligations of the
Philippines.38
Generally accepted principles of international law, as referred to in the Constitution, include customary international law. 39 Customary international law is
one of the primary sources of international law under Article 38 of the Statute of the International Court of Justice. 40 Customary international law consists
of acts which, by repetition of States of similar international acts for a number of years, occur out of a sense of obligation, and taken by a significant

61

number of States.41 It is based on custom, which is a clear and continuous habit of doing certain actions, which has grown under the aegis of the
conviction that these actions are, according to international law, obligatory or right. 42 Thus, customary international law requires the concurrence of two
elements: "[1] the established, wide-spread, and consistent practice on the part of the States; and [2] a psychological element known as opinion juris
sive necessitatis (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it."43
Some customary international laws have been affirmed and embodied in treaties and conventions. A treaty constitutes evidence of customary law if it is
declaratory of customary law, or if it is intended to codify customary law. In such a case, even a State not party to the treaty would be bound
thereby.44 A treaty which is merely a formal expression of customary international law is enforceable on all States because of their
membership in the family of nations.45 For instance, the Vienna Convention on Consular Relations is binding even on non-party States because the
provisions of the Convention are mostly codified rules of customary international law binding on all States even before their codification into the Vienna
Convention.46 Another example is the Law of the Sea, which consists mostly of codified rules of customary international law, which have been universally
observed even before the Law of the Sea was ratified by participating States.47
Corollarily, treaties may become the basis of customary international law. While States which are not parties to treaties or international agreements are
not bound thereby, such agreements, if widely accepted for years by many States, may transform into customary international laws, in which case, they
bind even non-signatory States.48
In Republic v. Sandiganbayan,49 this Court held that even in the absence of the Constitution, 50 generally accepted principles of international law remain
part of the laws of the Philippines. During the interregnum, or the period after the actual takeover of power by the revolutionary government in the
Philippines, following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional Constitution),
the 1973 Philippine Constitution was abrogated and there was no municipal law higher than the directives and orders of the revolutionary government.
Nevertheless, this Court ruled that even during this period, the provisions of the International Covenant on Civil and Political Rights and the Universal
Declaration of Human Rights, to which the Philippines is a signatory, remained in effect in the country. The Covenant and Declaration are based on
generally accepted principles of international law which are applicable in the Philippines even in the absence of a constitution, as during the interregnum.
Consequently, applying the provisions of the Covenant and the Declaration, the Filipino people continued to enjoy almost the same rights found in the
Bill of Rights despite the abrogation of the 1973 Constitution.
The Rome Statute of the International Criminal Court was adopted by 120 members of the United Nations (UN) on 17 July 1998. 51 It entered into force
on 1 July 2002, after 60 States became party to the Statute through ratification or accession. 52 The adoption of the Rome Statute fulfilled the
international communitys long-time dream of creating a permanent international tribunal to try serious international crimes. The Rome Statute, which
established an international criminal court and formally declared genocide, war crimes and other crimes against humanity as serious international
crimes, codified generally accepted principles of international law, including customary international laws. The principles of law embodied in the
Rome Statute were already generally accepted principles of international law even prior to the adoption of the Statute. Subsequently, the Rome Statute
itself has been widely accepted and, as of November 2010, it has been ratified by 114 states, 113 of which are members of the UN. 53
There are at present 192 members of the UN. Since 113 member states have already ratified the Rome Statute, more than a majority of all the UN
members have now adopted the Rome Statute as part of their municipal laws. Thus, the Rome Statute itself is generally accepted by the community of
nations as constituting a body of generally accepted principles of international law. The principles of law found in the Rome Statute constitute
generally accepted principles of international law enforceable in the Philippines under the Philippine Constitution. The principles of law
embodied in the Rome Statute are binding on the Philippines even if the Statute has yet to be ratified by the Philippine Senate. In short, the principles of
law enunciated in the Rome Statute are now part of Philippine domestic law pursuant to Section 2, Article II of the 1987 Philippine Constitution.
Article 89(1) of the Rome Statute provides as follows:
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to
any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person.
States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and
surrender.
xxxx
It is a principle of international law that a person accused of genocide, war crimes and other crimes against humanity shall be prosecuted by
the international community. A State where such a person may be found has the primary jurisdiction to prosecute such person, regardless of
nationality and where the crime was committed. However, if a State does not exercise such primary jurisdiction, then such State has the
obligation to turn over the accused to the international tribunal vested with jurisdiction to try such person. This principle has been codified in
Section 2(e) and Section 17 of RA 9851.
Moreover, Section 15 of RA 9851 has expressly adopted "[r]elevant and applicable international human rights instruments" as sources of
international law in the application and interpretation of RA 9851, thus:
Section 15. Applicability of International Law. - In the application and interpretation of this Act, Philippine courts shall be guided by the following
sources:
(a) x x x
xxx

62

(e) The rules and principles of customary international law;


xxx
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and
x x x. (Emphasis supplied)
The Rome Statute is the most relevant and applicable international human rights instrument in the application and interpretation of RA 9851. Section
15(g) of RA 9851 authorizes the use of the Rome Statute as a source of international law even though the Philippines is not a party to the Rome Statute.
Section 15(g) does not require ratification by the Philippines to such relevant and applicable international human rights instruments. International human
rights instruments to which the Philippines is a party are governed by Section 15(h), referring to treaties or conventions "ratified or acceded to" by the
Philippines, which constitute a different category of sources of international law under Section 15 of RA 9851. Thus, Section 15(g) and Section 15(h)
refer to different instruments, the former to international human rights instruments to which the Philippines is not a party, and the latter to international
human rights instruments to which the Philippines is a party. By mandate of Section 15 of RA 9851, both categories of instruments are sources of
international law in the application and interpretation of RA 9851.
However, paragraph 2 of the assailed RP-US Non-Surrender Agreement provides as follows:
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.
Clearly, the Agreement is in derogation of Article 89(1) of the Rome Statute. While Article 98(2) of the Rome Statute, which states as follows:
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." (Emphasis supplied)
allows for derogation of Article 89(1) if there is an international agreement between States allowing such derogation, such international agreement,
being in derogation of an existing municipal law insofar as the Philippines is concerned, must be embodied in a treaty and ratified by the Philippine
Senate. Article 98(2) does not ipso facto allow a derogation of Article 89(1), but requires a further act, that is, the execution of an international
agreement. Since such international agreement is in derogation of Article 89(1) of the Rome Statute and Section 17 of RA 8951, such
international agreement must be ratified by the Senate to become valid and effective.
Incidentally, the RP-US Non-Surrender Agreement allows the Philippines to surrender, even without U.S. consent, a U.S. national accused of a crime
under RA 9851 provided that the surrender is made to an "international tribunal xxx established by the UN Security Council." The United States agrees
to this because it has a veto power in the UN Security Council, a blocking power which it does not have, and cannot have, in the International Criminal
Court.
The International Criminal Court created under the Rome Statute was designed to complement the efforts of states to prosecute their own citizens
domestically while ensuring that those who violate international law would be brought to justice. 54 A state is given a chance to exercise
complementarity55 by informing the ICC of its choice to investigate and prosecute its own nationals through its own domestic courts. 56 Thus, the State
has the primary jurisdiction to investigate and prosecute its own nationals in its custody who may have committed the grave international crimes
specified in the Rome Statute. Under the same precept, Article 98(2) of the Rome Statute allows the State of the accused to act consistently with its
obligations under international agreements, and the ICC "may not proceed with a request for surrender" which would require such State to act otherwise.
The ICC steps in and assumes jurisdiction only if the State having primary jurisdiction and custody of the accused refuses to fulfill its international duty to
prosecute those responsible for grave international crimes.
The United States has not ratified the Rome Statute, and instead, entered into bilateral non-surrender agreements with countries, citing its ability to do
so under Article 98(2) of the Rome Statute. 57 These agreements, also called Bilateral Immunity Agreements (BIA), 58 were intended as "means [to
provide] assurances that no U.S. citizen would be handed over to the (International Criminal) Court for investigation and prosecution of
alleged crimes that fell within the Courts jurisdiction. xxx"59 There is currently an argument within the international community about the use of
Article 98 agreements, as negotiated by the U.S. after the adoption of the Rome Statute, and whether they should be recognized as having precedent
over ICCs authority.60 When Article 98 was originally included in the Rome Statute, it was intended to cover Status of Forces Agreements (SOFAs) and
Status of Missions Agreements (SOMAs),61 which establish the responsibilities of a nation sending troops to another country, as well as where
jurisdiction lies between the U.S. and the host government over criminal and civil issues involving the deployed personnel. 62 However, under the BIAs,
the standard definition of "persons" covered is "current or former Government officials, employees (including contractors), or military personnel
or nationals of one party."63 The Bush Administration64 contends that "such bilateral non-surrender agreements are Article 98(2) agreements and that
all US citizens of whatever character are covered by any such agreement, xxx [and this] US position on scope of the bilateral non-surrender agreements,
namely that itincludes US citizens acting in their private capacity, is legally supported by the text, the negotiating record, and
precedent."65 Meanwhile, international legal scholars and members of the US JAG Corps involved in the drafting of the Rome Statute
expressed frustration with the "expansive use of Article 98 agreements to apply to all Americans, not just those individuals usually covered in

63

SOFAs and SOMAs."66 There are even those who contend that since the BIAs do not deal solely with the conduct of official business, rather, they apply
to a wide variety of persons who may be on the territory of either party for any purpose at any time, then "the Rome Statute does not authorize these
agreements and by adhering to them, the countries will violate their obligations to the [ICC] under the Statute." 67> Regardless of these contentions,
however, the ultimate judge as to what agreement qualifies under Article 98(2) of the Rome Statute is the ICC itself. 68
The assailed RP-US Non-Surrender Agreement covers "officials, employees, military personnel, and nationals." Under the Agreement, the Philippines is
not allowed, without U.S. consent, to surrender to an international tribunal, including the ICC, U.S. nationals whether military personnel or plain
civilians accused of genocide, war crimes and other crimes against humanity, that is, the crimes covered by the Rome Statute and RA 9851. Whether
or not this Agreement would be recognized by the ICC as an "international agreement" qualified under Article 98(2) depends on the ICC itself. In the
domestic sphere, however, the Agreement, being in derogation of the generally accepted principles of international law embodied in Article 89(1) of the
Rome Statute, as well as being contrary to the provisions of Section 17 of RA 9851, should be ratified by the Philippine Senate to be valid and effective.
In sum, any derogation from the generally accepted principles of international law embodied in the Rome Statute, which principles have the status of
municipal law in this country, cannot be undertaken through a mere executive agreement because an executive agreement cannot amend existing laws.
A law or a treaty ratified by the Philippine Senate is necessary to amend, for purposes of domestic law, a derogable principle of international law, such as
Article 89(1) of the Rome Statute, which has the status of municipal law.
Likewise, any derogation from the surrender option of the Philippines under Section 17 of RA 9851 must be embodied in an applicable
extradition law or treaty and not in a mere executive agreement because such derogation violates RA 9851, which is superior to, and prevails
over, a prior executive agreement allowing such derogation. Under no circumstance can a mere executive agreement prevail over a prior or
subsequent law inconsistent with such executive agreement. Thus, the RP-US Non-Surrender Agreement to be valid and effective must be ratified
by the Philippine Senate, and unless so ratified, the Agreement is without force and effect.
Accordingly, I vote to GRANT the petition and to DECLARE the RP-US Non-Surrender Agreement ineffective and unenforceable unless and until ratified
by the Senate of the Philippines.
ANTONIO T. CARPIO
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 143855

September 21, 2010

REPRESENTATIVES GERARDO S. ESPINA, ORLANDO FUA, JR., PROSPERO AMATONG, ROBERT ACE S. BARBERS, RAUL M. GONZALES,
PROSPERO PICHAY, JUAN MIGUEL ZUBIRI and FRANKLIN BAUTISTA,Petitioners,
vs.
HON. RONALDO ZAMORA, JR. (Executive Secretary), HON. MAR ROXAS (Secretary of Trade and Industry), HON. FELIPE MEDALLA
(Secretary of National Economic and Development Authority), GOV. RAFAEL BUENAVENTURA (Bangko Sentral ng Pilipinas) and HON. LILIA
BAUTISTA (Chairman, Securities and Exchange Commission), Respondents.
DECISION
ABAD, J.:
This case calls upon the Court to exercise its power of judicial review and determine the constitutionality of the Retail Trade Liberalization Act of 2000,
which has been assailed as in breach of the constitutional mandate for the development of a self-reliant and independent national economy effectively
controlled by Filipinos.
The Facts and the Case
On March 7, 2000 President Joseph E. Estrada signed into law Republic Act (R.A.) 8762, also known as the Retail Trade Liberalization Act of 2000. It
expressly repealed R.A. 1180, which absolutely prohibited foreign nationals from engaging in the retail trade business. R.A. 8762 now allows them to do
so under four categories:
Category A

Less than
US$2,500,000.00

Exclusively for Filipino citizens and corporations wholly owned


by Filipino citizens.

Category B

US$2,500,000.00 up but less than


US$7,500,000.00

For the first two years of R.A. 8762s effectivity, foreign


ownership is allowed up to 60%. After the two-year period,

64

100% foreign equity shall be allowed.


Category C

US$7,500,000.00 or more

May be wholly owned by foreigners. Foreign investments for


establishing a store in Categories B and C shall not be less
than the equivalent in Philippine Pesos of US$830,000.00.

Category D

US$250,000.00 per store of foreign


enterprises specializing in high-end or
luxury products

May be wholly owned by foreigners.

R.A. 8762 also allows natural-born Filipino citizens, who had lost their citizenship and now reside in the Philippines, to engage in the retail trade
business with the same rights as Filipino citizens.
On October 11, 2000 petitioners ***Magtanggol T. Gunigundo I, Michael T. Defensor, Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero
Amatong, Sergio Apostol, Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M. Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo Montemayor,
Ma. Elena Palma-Gil, Prospero Pichay, Juan Miguel Zubiri and Franklin Bautista, all members of the House of Representatives, filed the present petition,
assailing the constitutionality of R.A. 8762 on the following grounds:
First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution which enjoins the State to place the national economy under
the control of Filipinos to achieve equal distribution of opportunities, promote industrialization and full employment, and protect Filipino
enterprise against unfair competition and trade policies.
Second, the implementation of R.A. 8762 would lead to alien control of the retail trade, which taken together with alien dominance of other
areas of business, would result in the loss of effective Filipino control of the economy.
Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers and sari-sari store vendors, destroy self-employment, and bring
about more unemployment.
Fourth, the World Bank-International Monetary Fund had improperly imposed the passage of R.A. 8762 on the government as a condition for
the release of certain loans.
Fifth, there is a clear and present danger that the law would promote monopolies or combinations in restraint of trade.
Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry Secretary Mar Roxas, National Economic and Development Authority
(NEDA) Secretary Felipe Medalla, Bangko Sentral ng Pilipinas Gov. Rafael Buenaventura, and Securities and Exchange Commission Chairman Lilia
Bautista countered that:
First, petitioners have no legal standing to file the petition. They cannot invoke the fact that they are taxpayers since R.A. 8762 does not
involve the disbursement of public funds. Nor can they invoke the fact that they are members of Congress since they made no claim that the
law infringes on their right as legislators.
Second, the petition does not involve any justiciable controversy. Petitioners of course claim that, as members of Congress, they represent the
small retail vendors in their respective districts but the petition does not allege that the subject law violates the rights of those vendors.
Third, petitioners have failed to overcome the presumption of constitutionality of R.A. 8762. Indeed, they could not specify how the new law
violates the constitutional provisions they cite. Sections 9, 19, and 20 of Article II of the Constitution are not self-executing provisions that are
judicially demandable.
Fourth, the Constitution mandates the regulation but not the prohibition of foreign investments. It directs Congress to reserve to Filipino
citizens certain areas of investments upon the recommendation of the NEDA and when the national interest so dictates. But the Constitution
leaves to the discretion of the Congress whether or not to make such reservation. It does not prohibit Congress from enacting laws allowing
the entry of foreigners into certain industries not reserved by the Constitution to Filipino citizens.
The Issues Presented
Simplified, the case presents two issues:
1. Whether or not petitioner lawmakers have the legal standing to challenge the constitutionality of R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
The Courts Ruling
One. The long settled rule is that he who challenges the validity of a law must have a standing to do so. 1 Legal standing or locus standi refers to the right
of a party to come to a court of justice and make such a challenge. More particularly, standing refers to his personal and substantial interest in that he
has suffered or will suffer direct injury as a result of the passage of that law. 2 To put it another way, he must show that he has been or is about to be

65

denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the law he
complains of.3
Here, there is no clear showing that the implementation of the Retail Trade Liberalization Act prejudices petitioners or inflicts damages on them, either as
taxpayers4 or as legislators.5 Still the Court will resolve the question they raise since the rule on standing can be relaxed for nontraditional plaintiffs like
ordinary citizens, taxpayers, and legislators when as in this case the public interest so requires or the matter is of transcendental importance, of
overarching significance to society, or of paramount public interest. 6
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the 1987 Constitution for the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos. They invoke the provisions of the Declaration of Principles and State Policies under Article II of the
1987 Constitution, which read as follows:
Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people
from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life
for all.
xxxx
Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed
investments.
Petitioners also invoke the provisions of the National Economy and Patrimony under Article XII of the 1987 Constitution, which reads:
Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and
priorities.
xxxx
Section 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help
make them competitive.
Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity.
But, as the Court explained in Taada v. Angara,7 the provisions of Article II of the 1987 Constitution, the declarations of principles and state policies, are
not self-executing. Legislative failure to pursue such policies cannot give rise to a cause of action in the courts.
The Court further explained in Taada that Article XII of the 1987 Constitution lays down the ideals of economic nationalism: (1) by expressing
preference in favor of qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony and in the use of
Filipino labor, domestic materials and locally-produced goods; (2) by mandating the State to adopt measures that help make them competitive; and (3)
by requiring the State to develop a self-reliant and independent national economy effectively controlled by Filipinos. 8ten.lihpwal
In other words, while Section 19, Article II of the 1987 Constitution requires the development of a self-reliant and independent national economy
effectively controlled by Filipino entrepreneurs, it does not impose a policy of Filipino monopoly of the economic environment. The objective is simply to
prohibit foreign powers or interests from maneuvering our economic policies and ensure that Filipinos are given preference in all areas of development.
Indeed, the 1987 Constitution takes into account the realities of the outside world as it requires the pursuit of a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity; and speaks of industries which are competitive in
both domestic and foreign markets as well as of the protection of Filipino enterprises against unfair foreign competition and trade practices. Thus, while
the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, it also recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices
that are unfair.9
In other words, the 1987 Constitution does not rule out the entry of foreign investments, goods, and services. While it does not encourage their unlimited
entry into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.10 The key, as in all economies in the world, is to strike a balance between protecting local businesses and allowing the entry of
foreign investments and services.1avvphi1

66

More importantly, Section 10, Article XII of the 1987 Constitution gives Congress the discretion to reserve to Filipinos certain areas of investments upon
the recommendation of the NEDA and when the national interest requires. Thus, Congress can determine what policy to pass and when to pass it
depending on the economic exigencies. It can enact laws allowing the entry of foreigners into certain industries not reserved by the Constitution to
Filipino citizens. In this case, Congress has decided to open certain areas of the retail trade business to foreign investments instead of reserving them
exclusively to Filipino citizens. The NEDA has not opposed such policy.
The control and regulation of trade in the interest of the public welfare is of course an exercise of the police power of the State. A persons right to
property, whether he is a Filipino citizen or foreign national, cannot be taken from him without due process of law. In 1954, Congress enacted the Retail
Trade Nationalization Act or R.A. 1180 that restricts the retail business to Filipino citizens. In denying the petition assailing the validity of such Act for
violation of the foreigners right to substantive due process of law, the Supreme Court held that the law constituted a valid exercise of police power. 11 The
State had an interest in preventing alien control of the retail trade and R.A. 1180 was reasonably related to that purpose. That law is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the restraint on the foreigners right to property or to engage in an
ordinarily lawful business, it cannot be said that the law amounts to a denial of the Filipinos right to property and to due process of law. Filipinos continue
to have the right to engage in the kinds of retail business to which the law in question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the wisdom of R.A. 8762 save when it blatantly violates the Constitution. But as the
Court has said, there is no showing that the law has contravened any constitutional mandate. The Court is not convinced that the implementation of R.A.
8762 would eventually lead to alien control of the retail trade business. Petitioners have not mustered any concrete and strong argument to support its
thesis. The law itself has provided strict safeguards on foreign participation in that business. Thus
First, aliens can only engage in retail trade business subject to the categories above-enumerated; Second, only nationals from, or juridical entities
formed or incorporated in countries which allow the entry of Filipino retailers shall be allowed to engage in retail trade business; and Third, qualified
foreign retailers shall not be allowed to engage in certain retailing activities outside their accredited stores through the use of mobile or rolling stores or
carts, the use of sales representatives, door-to-door selling, restaurants and sari-sari stores and such other similar retailing activities.
In sum, petitioners have not shown how the retail trade liberalization has prejudiced and can prejudice the local small and medium enterprises since its
implementation about a decade ago.
WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

(On Official Leave)


PRESBITERO J. VELASCO, JR.*
Associate Justice

(On Official Leave)


ANTONIO EDUARDO B. NACHURA*
Associate Justice

(On Official Leave)


TERESITA J. LEONARDO-DE CASTRO *
Associate Justice

(On Official Leave)


ARTURO D. BRION*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

(On Official Leave)


JOSE CATRAL MENDOZA*
Associate Justice

(On Leave)
MARIA LOURDES P. A. SERENO**
Associate Justice

67

C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 193636

July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,


vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as
Chief, Intelligence Division, PNP Provincial Office, Ilocos Norte,Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to Rule 19 1 of the Rule on the Writ of Habeas
Data,2 seeking a review of the 9 September 2010 Decision in Special Proc. No. 14979 of the Regional Trial Court, First Judicial Region, Laoag City,
Branch 13 (RTC Br. 13).3 The questioned Decision denied petitioner the privilege of the writ of habeas data. 4
At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor of Dingras, Ilocos Norte. 5 Meanwhile, respondent
Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.) William O. Fang
was the Chief of the Provincial Investigation and Detective Management Branch, both of the Ilocos Norte Police Provincial Office. 6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No. 275 (A.O. 275), "Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the Country." 7The body, which was later on referred to as the Zearosa
Commission,8 was formed to investigate the existence of private army groups (PAGs) in the country with a view to eliminating them before the 10 May
2010 elections and dismantling them permanently in the future. 9 Upon the conclusion of its investigation, the Zearosa Commission released and
submitted to the Office of the President a confidential report entitled "A Journey Towards H.O.P.E.: The Independent Commission Against Private Armies
Report to the President" (the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNPIlocos Norte) conducted a series of surveillance operations against her and her
aides,11 and classified her as someone who keeps a PAG. 12Purportedly without the benefit of data verification, PNPIlocos Norte forwarded the
information gathered on her to the Zearosa Commission, 13 thereby causing her inclusion in the Reports enumeration of individuals maintaining
PAGs.14 More specifically, she pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the Philippines. 15
(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for each private armed group (PAG) to monitor
and counteract their activities."16

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(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as "Status of PAGs Monitoring by STGs as of
April 19, 2010," which classifies PAGs in the country according to region, indicates their identity, and lists the prominent personalities with
whom these groups are associated. 17 The first entry in the table names a PAG, known as the Gamboa Group, linked to herein petitioner
Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to wit:
The resolutions were the subject of a national press conference held in Malacaang on March 24, 2010 at which time, the Commission was
also asked to comment on the PNP report that out of one hundred seventeen (117) partisan armed groups validated, twenty-four (24) had
been dismantled with sixty-seven (67) members apprehended and more than eighty-six (86) firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were based on PNP data but that the more significant fact from his report is that
the PNP has been vigilant in monitoring the activities of these armed groups and this vigilance is largely due to the existence of the
Commission which has continued communicating with the Armed Forces of the Philippines (AFP) and PNP personnel in the field to constantly
provide data on the activities of the PAGs. Commissioner Basbao stressed that the Commissions efforts have preempted the formation of
the PAGs because now everyone is aware that there is a body monitoring the PAGs movement through the PNP. Commissioner Lieutenant
General Edilberto Pardo Adan also clarified that the PAGs are being destabilized so that their ability to threaten and sow fear during the
election has been considerably weakened.19
(e) The Report briefly touched upon the validation system of the PNP:
Also, in order to provide the Commission with accurate data which is truly reflective of the situation in the field, the PNP complied with the Commissions
recommendation that they revise their validation system to include those PAGs previously listed as dormant. In the most recent briefing provided by the
PNP on April 26, 2010, there are one hundred seven (107) existing PAGs. Of these groups, the PNP reported that seven (7) PAGs have been
reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report naming Gamboa as one of the politicians alleged to
be maintaining a PAG. 21 Gamboa averred that her association with a PAG also appeared on print media. 22 Thus, she was publicly tagged as someone
who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zearosa Commission. 23 As a
result, she claimed that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as published in the Report also made
her, as well as her supporters and other people identified with her, susceptible to harassment and police surveillance operations. 24
Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance
of a writ of habeas data against respondents in their capacities as officials of the PNP-Ilocos Norte. 25 In her Petition, she prayed for the following reliefs:
(a) destruction of the unverified reports from the PNP-Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining
respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding writ on 14 July 2010 after finding the
Petition meritorious on its face.27 Thus, the trial court (a) instructed respondents to submit all information and reports forwarded to and used by the
Zearosa Commission as basis to include her in the list of persons maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to
cease and desist from forwarding to the Zearosa Commission, or to any other government entity, information that they may have gathered against her
without the approval of the court; (c) ordered respondents to make a written return of the writ together with supporting affidavits; and (d) scheduled the
summary hearing of the case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting the investigation and surveillance of
Gamboa.29 The information stored in their database supposedly pertained to two criminal cases in which she was implicated, namely: (a) a Complaint for
murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault
upon a person in authority, as well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009. 30
Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites under the Rule on the Writ of Habeas
Data: (a) the manner in which the right to privacy was violated or threatened with violation and how it affected the right to life, liberty or security of
Gamboa; (b) the actions and recourses she took to secure the data or information; and (c) the location of the files, registers or databases, the
government office, and the person in charge, in possession or in control of the data or information. 31 They also contended that the Petition for Writ of
Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was not the proper remedy to address the alleged
besmirching of the reputation of Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition. 33 The trial court categorically ruled that the inclusion of Gamboa in
the list of persons maintaining PAGs, as published in the Report, constituted a violation of her right to privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs, Gamboas right to privacy indubitably has been
violated. The violation understandably affects her life, liberty and security enormously. The untold misery that comes with the tag of having a PAG could
even be insurmountable. As she essentially alleged in her petition, she fears for her security that at any time of the day the unlimited powers of
respondents may likely be exercised to further malign and destroy her reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was certainly intrusion into Gamboas activities. It cannot be
denied that information was gathered as basis therefor. After all, under Administrative Order No. 275, the Zearosa Commission was tasked to
investigate the existence of private armies in the country, with all the powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987.

69

xxx

xxx

xxx

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused respondents, who are public officials, of having gathered and
provided information that made the Zearosa Commission to include her in the list. Obviously, it was this gathering and forwarding of information
supposedly by respondents that petitioner barks at as unlawful. x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to prove through substantial evidence
that the subject information originated from respondents, and that they forwarded this database to the Zearosa Commission without the benefit of prior
verification.35 The trial court also ruled that even before respondents assumed their official positions, information on her may have already been
acquired.36 Finally, it held that the Zearosa Commission, as the body tasked to gather information on PAGs and authorized to disclose information on
her, should have been impleaded as a necessary if not a compulsory party to the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zearosa Commission be impleaded as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link respondents as the informant to [sic] the Zearosa
Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP as an agency.39
On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial evidence to show that her right to privacy in
life, liberty or security was violated, and (b) the trial court correctly dismissed the Petition on the ground that she had failed to present sufficient proof
showing that respondents were the source of the report naming her as one who maintains a PAG. 40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in the country should be done in
accordance with due process, such that the gathering and forwarding of unverified information on her must be considered unlawful. 41 She also reiterates
that she was able to present sufficient evidence showing that the subject information originated from respondents. 42
In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called upon to, first, unpack the concept of the
right to privacy; second, explain the writ of habeas data as an extraordinary remedy that seeks to protect the right to informational privacy; and finally,
contextualize the right to privacy vis--vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court, in Morfe v. Mutuc, 43 thus enunciated:
The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff
that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is
much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint;
it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of fact,
this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and
interference demands respect. xxx.
xxx

xxx

xxx

x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court, stated: "Various guarantees create zones
of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The
Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people." After referring to various American Supreme Court decisions, Justice Douglas continued: "These cases bear witness that the
right of privacy which presses for recognition is a legitimate one."
xxx

xxx

xxx

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In

70

contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become
increasingly important as modern society has developed. All the forces of a technological age industrialization, urbanization, and organization
operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life
marks the difference between a democratic and a totalitarian society." 44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases of the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
xxx

xxx

xxx

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.
xxx

xxx

xxx

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the
privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets
by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the AntiWiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise
recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. x x x. 46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint. However, in Standard Chartered Bank
v. Senate Committee on Banks,47 this Court underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true
that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of
the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access
information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the
right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe
v. Mutuc, there is no infringement of the individuals right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to
ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it
to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. 48
Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases,
although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate
and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information
of an individual, and to provide a forum to enforce ones right to the truth and to informational privacy. 49 It seeks to protect a persons right to control

71

information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful
ends.50 It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one
hand, and the right to life, liberty or security on the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data
information regarding the person, family, home and correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the Latin American habeas data, on
which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the European tradition of data protection, 51 this Court can be guided by
cases on the protection of personal data decided by the European Court of Human Rights (ECHR). Of particular note is Leander v. Sweden, 52 in which
the ECHR balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect its national security. In this
case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement museum technician at the Naval Museum, which was adjacent
to a restricted military security zone.53 He was refused employment when the requisite personnel control resulted in an unfavorable outcome on the basis
of information in the secret police register, which was kept in accordance with the Personnel Control Ordinance and to which he was prevented
access.54 He claimed, among others, that this procedure of security control violated Article 8 of the European Convention of Human Rights 55 on the right
to privacy, as nothing in his personal or political background would warrant his classification in the register as a security risk. 56
The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander, coupled with the refusal to allow him
the opportunity to refute the same, amounted to an interference in his right to respect for private life. 57 However, the ECHR held that the interference was
justified on the following grounds: (a) the personnel control system had a legitimate aim, which was the protection of national security, 58 and (b) the
Personnel Control Ordinance gave the citizens adequate indication as to the scope and the manner of exercising discretion in the collection, recording
and release of information by the authorities.59 The following statements of the ECHR must be emphasized:
58. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no. 109, p. 22, 55).
59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the
nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the
respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicants right to
respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have laws granting the competent
domestic authorities power, firstly, to collect and store in registers not accessible to the public information on persons and, secondly, to use this
information when assessing the suitability of candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders legitimate interests through the consequences it had on his possibilities of
access to certain sensitive posts within the public service. On the other hand, the right of access to public service is not as such enshrined in the
Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the
present case, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one.
xxx

xxx

xxx

66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by itself warrant the conclusion that the
interference was not "necessary in a democratic society in the interests of national security", as it is the very absence of such communication which, at
least partly, ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A
no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including the Chancellor of Justice and the
Parliamentary Ombudsman, considered it desirable that the rule of communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish personnel control system meet the
requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it, the respondent State was entitled to
consider that in the present case the interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued. (Emphases
supplied)
Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield to an overriding legitimate state
interest. In similar fashion, the determination of whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis--vis the interest of the state to dismantle private armies.

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The Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by the duly constituted authority. 60 It also
provides for the establishment of one police force that is national in scope and civilian in character, and is controlled and administered by a national
police commission.61
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state aim, which is to investigate the
existence of PAGs with the ultimate objective of dismantling them permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative body, including the power to summon
witnesses, administer oaths, take testimony or evidence relevant to the investigation and use compulsory processes to produce documents, books, and
records.62 A.O. 275 likewise authorized the Zearosa Commission to deputize the Armed Forces of the Philippines, the National Bureau of Investigation,
the Department of Justice, the PNP, and any other law enforcement agency to assist the commission in the performance of its functions. 63
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances relative to the protection of lives and
properties; (b) maintain peace and order and take all necessary steps to ensure public safety; and (c) investigate and prevent crimes. 64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the Zearosa Commission and the PNP,
the latter collected information on individuals suspected of maintaining PAGs, monitored them and counteracted their activities. 65 One of those
individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a PAG coddler came from the PNP.
Contrary to the ruling of the trial court, however, the forwarding of information by the PNP to the Zearosa Commission was not an unlawful act that
violated or threatened her right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the
existence of these notorious groups. Moreover, the Zearosa Commission was explicitly authorized to deputize the police force in the fulfillment of the
formers mandate, and thus had the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zearosa Commission without prior
communication to Gamboa and without affording her the opportunity to refute the same cannot be interpreted as a violation or threat to her right to
privacy since that act is an inherent and crucial component of intelligence-gathering and investigation.1wphi1 Additionally, Gamboa herself admitted
that the PNP had a validation system, which was used to update information on individuals associated with PAGs and to ensure that the data mirrored
the situation on the field.66 Thus, safeguards were put in place to make sure that the information collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to make any further determination as to the propriety of sharing information
during specific stages of intelligence gathering. To do otherwise would supplant the discretion of investigative bodies in the accomplishment of their
functions, resulting in an undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this Court nonetheless deems it
necessary to caution these investigating entities that information-sharing must observe strict confidentiality. Intelligence gathered must be released
exclusively to the authorities empowered to receive the relevant information. After all, inherent to the right to privacy is the freedom from "unwarranted
exploitation of ones person or from intrusion into ones private activities in such a way as to cause humiliation to a persons ordinary sensibilities." 67
In this case, respondents admitted the existence of the Report, but emphasized its confidential nature.1wphi1 That it was leaked to third parties and the
media was regrettable, even warranting reproach. But it must be stressed that Gamboa failed to establish that respondents were responsible for this
unintended disclosure. In any event, there are other reliefs available to her to address the purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs
made her and her supporters susceptible to harassment and to increased police surveillance. In this regard, respondents sufficiently explained that the
investigations conducted against her were in relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of
regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on the private life of Gamboa,
especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the
writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed Decision in Special Proc. No. 14979 dated 9 September 2010 of the Regional
Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is AFFIRMED.
SO ORDERED.
MARIA LOURDES P.A. SERENO
Associate justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice

73

PRESBITERO J. VELASCO, JR.


Associate Justice

(On official leave)


TERESITA J. LEONARDO-DE CASTRO *
Associate Justice

(On leave)
ARTURO D. BRION**
Associate Justice

(On official business)


DIOSDADO M. PERALTA***
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

(On leave)
JOSE CATRAL MENDOZA
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

74

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 176579

June 28, 2011

WILSON P. GAMBOA, Petitioner,


vs.
FINANCE SECRETARY MARGARITO B. TEVES, FINANCE UNDERSECRETARY JOHN P. SEVILLA, AND COMMISSIONER RICARDO ABCEDE
OF THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) IN THEIR CAPACITIES AS CHAIR AND MEMBERS, RESPECTIVELY,
OF THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM OF FIRST PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO
PACIFIC ASSET HOLDINGS INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT) IN
HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD., PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG
DISTANCE TELEPHONE COMPANY, CHAIR FE BARIN OF THE SECURITIES EXCHANGE COMMISSION, and PRESIDENT FRANCIS LIM OF THE
PHILIPPINE STOCK EXCHANGE, Respondents.
PABLITO V. SANIDAD and ARNO V. SANIDAD, Petitioners-in-Intervention.
DECISION
CARPIO, J.:
The Case
This is an original petition for prohibition, injunction, declaratory relief and declaration of nullity of the sale of shares of stock of Philippine
Telecommunications Investment Corporation (PTIC) by the government of the Republic of the Philippines to Metro Pacific Assets Holdings, Inc. (MPAH),
an affiliate of First Pacific Company Limited (First Pacific).
The Antecedents
The facts, according to petitioner Wilson P. Gamboa, a stockholder of Philippine Long Distance Telephone Company (PLDT), are as follows: 1
On 28 November 1928, the Philippine Legislature enacted Act No. 3436 which granted PLDT a franchise and the right to engage in telecommunications
business. In 1969, General Telephone and Electronics Corporation (GTE), an American company and a major PLDT stockholder, sold 26 percent of the
outstanding common shares of PLDT to PTIC. In 1977, Prime Holdings, Inc. (PHI) was incorporated by several persons, including Roland Gapud and
Jose Campos, Jr. Subsequently, PHI became the owner of 111,415 shares of stock of PTIC by virtue of three Deeds of Assignment executed by PTIC
stockholders Ramon Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415 shares of stock of PTIC held by PHI were sequestered by the Presidential
Commission on Good Government (PCGG). The 111,415 PTIC shares, which represent about 46.125 percent of the outstanding capital stock of PTIC,
were later declared by this Court to be owned by the Republic of the Philippines.2
In 1999, First Pacific, a Bermuda-registered, Hong Kong-based investment firm, acquired the remaining 54 percent of the outstanding capital stock of
PTIC. On 20 November 2006, the Inter-Agency Privatization Council (IPC) of the Philippine Government announced that it would sell the 111,415 PTIC
shares, or 46.125 percent of the outstanding capital stock of PTIC, through a public bidding to be conducted on 4 December 2006. Subsequently, the
public bidding was reset to 8 December 2006, and only two bidders, Parallax Venture Fund XXVII (Parallax) and Pan-Asia Presidio Capital, submitted
their bids. Parallax won with a bid of P25.6 billion or US$510 million.
Thereafter, First Pacific announced that it would exercise its right of first refusal as a PTIC stockholder and buy the 111,415 PTIC shares by matching the
bid price of Parallax. However, First Pacific failed to do so by the 1 February 2007 deadline set by IPC and instead, yielded its right to PTIC itself which
was then given by IPC until 2 March 2007 to buy the PTIC shares. On 14 February 2007, First Pacific, through its subsidiary, MPAH, entered into a
Conditional Sale and Purchase Agreement of the 111,415 PTIC shares, or 46.125 percent of the outstanding capital stock of PTIC, with the Philippine
Government for the price of P25,217,556,000 or US$510,580,189. The sale was completed on 28 February 2007.
Since PTIC is a stockholder of PLDT, the sale by the Philippine Government of 46.125 percent of PTIC shares is actually an indirect sale of 12 million
shares or about 6.3 percent of the outstanding common shares of PLDT.With the sale, First Pacifics common shareholdings in PLDT increased
from 30.7 percent to 37 percent, thereby increasing the common shareholdings of foreigners in PLDT to about 81.47 percent. This violates
Section 11, Article XII of the 1987 Philippine Constitution which limits foreign ownership of the capital of a public utility to not more than 40 percent. 3
On the other hand, public respondents Finance Secretary Margarito B. Teves, Undersecretary John P. Sevilla, and PCGG Commissioner Ricardo
Abcede allege the following relevant facts:
On 9 November 1967, PTIC was incorporated and had since engaged in the business of investment holdings. PTIC held 26,034,263 PLDT common
shares, or 13.847 percent of the total PLDT outstanding common shares. PHI, on the other hand, was incorporated in 1977, and became the owner of
111,415 PTIC shares or 46.125 percent of the outstanding capital stock of PTIC by virtue of three Deeds of Assignment executed by Ramon Cojuangco
and Luis Tirso Rivilla. In 1986, the 111,415 PTIC shares held by PHI were sequestered by the PCGG, and subsequently declared by this Court as part of

75

the ill-gotten wealth of former President Ferdinand Marcos. The sequestered PTIC shares were reconveyed to the Republic of the Philippines in
accordance with this Courts decision4 which became final and executory on 8 August 2006.
The Philippine Government decided to sell the 111,415 PTIC shares, which represent 6.4 percent of the outstanding common shares of stock of PLDT,
and designated the Inter-Agency Privatization Council (IPC), composed of the Department of Finance and the PCGG, as the disposing entity. An
invitation to bid was published in seven different newspapers from 13 to 24 November 2006. On 20 November 2006, a pre-bid conference was held, and
the original deadline for bidding scheduled on 4 December 2006 was reset to 8 December 2006. The extension was published in nine different
newspapers.
During the 8 December 2006 bidding, Parallax Capital Management LP emerged as the highest bidder with a bid of P25,217,556,000. The government
notified First Pacific, the majority owner of PTIC shares, of the bidding results and gave First Pacific until 1 February 2007 to exercise its right of first
refusal in accordance with PTICs Articles of Incorporation. First Pacific announced its intention to match Parallaxs bid.
On 31 January 2007, the House of Representatives (HR) Committee on Good Government conducted a public hearing on the particulars of the then
impending sale of the 111,415 PTIC shares. Respondents Teves and Sevilla were among those who attended the public hearing. The HR Committee
Report No. 2270 concluded that: (a) the auction of the governments 111,415 PTIC shares bore due diligence, transparency and conformity with existing
legal procedures; and (b) First Pacifics intended acquisition of the governments 111,415 PTIC shares resulting in First Pacifics 100%
ownership of PTIC will not violate the 40 percent constitutional limit on foreign ownership of a public utility since PTIC holds only 13.847
percent of the total outstanding common shares of PLDT.5 On 28 February 2007, First Pacific completed the acquisition of the 111,415 shares of
stock of PTIC.
Respondent Manuel V. Pangilinan admits the following facts: (a) the IPC conducted a public bidding for the sale of 111,415 PTIC shares or 46 percent of
the outstanding capital stock of PTIC (the remaining 54 percent of PTIC shares was already owned by First Pacific and its affiliates); (b) Parallax offered
the highest bid amounting toP25,217,556,000; (c) pursuant to the right of first refusal in favor of PTIC and its shareholders granted in PTICs Articles of
Incorporation, MPAH, a First Pacific affiliate, exercised its right of first refusal by matching the highest bid offered for PTIC shares on 13 February 2007;
and (d) on 28 February 2007, the sale was consummated when MPAH paid IPC P25,217,556,000 and the government delivered the certificates for the
111,415 PTIC shares. Respondent Pangilinan denies the other allegations of facts of petitioner.
On 28 February 2007, petitioner filed the instant petition for prohibition, injunction, declaratory relief, and declaration of nullity of sale of the 111,415 PTIC
shares. Petitioner claims, among others, that the sale of the 111,415 PTIC shares would result in an increase in First Pacifics common shareholdings in
PLDT from 30.7 percent to 37 percent, and this, combined with Japanese NTT DoCoMos common shareholdings in PLDT, would result to a total foreign
common shareholdings in PLDT of 51.56 percent which is over the 40 percent constitutional limit. 6 Petitioner asserts:
If and when the sale is completed, First Pacifics equity in PLDT will go up from 30.7 percent to 37.0 percent of its common or voting- stockholdings, x
x x. Hence, the consummation of the sale will put the two largest foreign investors in PLDT First Pacific and Japans NTT DoCoMo, which is the worlds
largest wireless telecommunications firm, owning 51.56 percent of PLDT common equity. x x x With the completion of the sale, data culled from the
official website of the New York Stock Exchange (www.nyse.com) showed that those foreign entities, which own at least five percent of common equity,
will collectively own 81.47 percent of PLDTs common equity. x x x
x x x as the annual disclosure reports, also referred to as Form 20-K reports x x x which PLDT submitted to the New York Stock Exchange for the period
2003-2005, revealed that First Pacific and several other foreign entities breached the constitutional limit of 40 percent ownership as early as 2003. x x
x"7
Petitioner raises the following issues: (1) whether the consummation of the then impending sale of 111,415 PTIC shares to First Pacific violates the
constitutional limit on foreign ownership of a public utility; (2) whether public respondents committed grave abuse of discretion in allowing the sale of the
111,415 PTIC shares to First Pacific; and (3) whether the sale of common shares to foreigners in excess of 40 percent of the entire subscribed common
capital stock violates the constitutional limit on foreign ownership of a public utility.8
On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed a Motion for Leave to Intervene and Admit Attached Petition-in-Intervention. In the
Resolution of 28 August 2007, the Court granted the motion and noted the Petition-in-Intervention.
Petitioners-in-intervention "join petitioner Wilson Gamboa x x x in seeking, among others, to enjoin and/or nullify the sale by respondents of the 111,415
PTIC shares to First Pacific or assignee." Petitioners-in-intervention claim that, as PLDT subscribers, they have a "stake in the outcome of the
controversy x x x where the Philippine Government is completing the sale of government owned assets in [PLDT], unquestionably a public utility, in
violation of the nationality restrictions of the Philippine Constitution."
The Issue
This Court is not a trier of facts. Factual questions such as those raised by petitioner, 9 which indisputably demand a thorough examination of the
evidence of the parties, are generally beyond this Courts jurisdiction. Adhering to this well-settled principle, the Court shall confine the resolution of the
instant controversy solely on the threshold and purely legal issue of whether the term "capital" in Section 11, Article XII of the Constitution refers to the
total common shares only or to the total outstanding capital stock (combined total of common and non-voting preferred shares) of PLDT, a public utility.
The Ruling of the Court
The petition is partly meritorious.
Petition for declaratory relief treated as petition for mandamus

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At the outset, petitioner is faced with a procedural barrier. Among the remedies petitioner seeks, only the petition for prohibition is within the original
jurisdiction of this court, which however is not exclusive but is concurrent with the Regional Trial Court and the Court of Appeals. The actions for
declaratory relief,10 injunction, and annulment of sale are not embraced within the original jurisdiction of the Supreme Court. On this ground alone, the
petition could have been dismissed outright.
While direct resort to this Court may be justified in a petition for prohibition, 11 the Court shall nevertheless refrain from discussing the grounds in support
of the petition for prohibition since on 28 February 2007, the questioned sale was consummated when MPAH paid IPC P25,217,556,000 and the
government delivered the certificates for the 111,415 PTIC shares.
However, since the threshold and purely legal issue on the definition of the term "capital" in Section 11, Article XII of the Constitution has far-reaching
implications to the national economy, the Court treats the petition for declaratory relief as one for mandamus. 12
In Salvacion v. Central Bank of the Philippines,13 the Court treated the petition for declaratory relief as one for mandamus considering the grave injustice
that would result in the interpretation of a banking law. In that case, which involved the crime of rape committed by a foreign tourist against a Filipino
minor and the execution of the final judgment in the civil case for damages on the tourists dollar deposit with a local bank, the Court declared Section
113 of Central Bank Circular No. 960, exempting foreign currency deposits from attachment, garnishment or any other order or process of any court,
inapplicable due to the peculiar circumstances of the case. The Court held that "injustice would result especially to a citizen aggrieved by a foreign guest
like accused x x x" that would "negate Article 10 of the Civil Code which provides that in case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to prevail." The Court therefore required respondents Central Bank of the Philippines, the
local bank, and the accused to comply with the writ of execution issued in the civil case for damages and to release the dollar deposit of the accused to
satisfy the judgment.
In Alliance of Government Workers v. Minister of Labor,14 the Court similarly brushed aside the procedural infirmity of the petition for declaratory relief
and treated the same as one for mandamus. In Alliance, the issue was whether the government unlawfully excluded petitioners, who were government
employees, from the enjoyment of rights to which they were entitled under the law. Specifically, the question was: "Are the branches, agencies,
subdivisions, and instrumentalities of the Government, including government owned or controlled corporations included among the four employers
under Presidential Decree No. 851 which are required to pay their employees x x x a thirteenth (13th) month pay x x x ?" The Constitutional principle
involved therein affected all government employees, clearly justifying a relaxation of the technical rules of procedure, and certainly requiring the
interpretation of the assailed presidential decree.
In short, it is well-settled that this Court may treat a petition for declaratory relief as one for mandamus if the issue involved has far-reaching implications.
As this Court held in Salvacion:
The Court has no original and exclusive jurisdiction over a petition for declaratory relief. However, exceptions to this rule have been
recognized. Thus, where the petition has far-reaching implications and raises questions that should be resolved, it may be treated as one for
mandamus.15 (Emphasis supplied)
In the present case, petitioner seeks primarily the interpretation of the term "capital" in Section 11, Article XII of the Constitution. He prays that this Court
declare that the term "capital" refers to common shares only, and that such shares constitute "the sole basis in determining foreign equity in a public
utility." Petitioner further asks this Court to declare any ruling inconsistent with such interpretation unconstitutional.
The interpretation of the term "capital" in Section 11, Article XII of the Constitution has far-reaching implications to the national economy. In fact, a
resolution of this issue will determine whether Filipinos are masters, or second class citizens, in their own country. What is at stake here is whether
Filipinos or foreigners will have effective control of the national economy. Indeed, if ever there is a legal issue that has far-reaching implications to the
entire nation, and to future generations of Filipinos, it is the threshhold legal issue presented in this case.
The Court first encountered the issue on the definition of the term "capital" in Section 11, Article XII of the Constitution in the case of Fernandez v.
Cojuangco, docketed as G.R. No. 157360.16 That case involved the same public utility (PLDT) and substantially the same private respondents. Despite
the importance and novelty of the constitutional issue raised therein and despite the fact that the petition involved a purely legal question, the Court
declined to resolve the case on the merits, and instead denied the same for disregarding the hierarchy of courts. 17 There, petitioner Fernandez assailed
on a pure question of law the Regional Trial Courts Decision of 21 February 2003 via a petition for review under Rule 45. The Courts Resolution,
denying the petition, became final on 21 December 2004.
The instant petition therefore presents the Court with another opportunity to finally settle this purely legal issuewhich is of transcendental importance to
the national economy and a fundamental requirement to a faithful adherence to our Constitution. The Court must forthwith seize such opportunity, not
only for the benefit of the litigants, but more significantly for the benefit of the entire Filipino people, to ensure, in the words of the Constitution, "a selfreliant and independent national economy effectively controlled by Filipinos."18 Besides, in the light of vague and confusing positions taken by
government agencies on this purely legal issue, present and future foreign investors in this country deserve, as a matter of basic fairness, a categorical
ruling from this Court on the extent of their participation in the capital of public utilities and other nationalized businesses.
Despite its far-reaching implications to the national economy, this purely legal issue has remained unresolved for over 75 years since the 1935
Constitution. There is no reason for this Court to evade this ever recurring fundamental issue and delay again defining the term "capital," which appears
not only in Section 11, Article XII of the Constitution, but also in Section 2, Article XII on co-production and joint venture agreements for the development
of our natural resources, 19 in Section 7, Article XII on ownership of private lands, 20 in Section 10, Article XII on the reservation of certain investments to
Filipino citizens,21 in Section 4(2), Article XIV on the ownership of educational institutions,22 and in Section 11(2), Article XVI on the ownership of
advertising companies.23
Petitioner has locus standi

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There is no dispute that petitioner is a stockholder of PLDT. As such, he has the right to question the subject sale, which he claims to violate the
nationality requirement prescribed in Section 11, Article XII of the Constitution. If the sale indeed violates the Constitution, then there is a possibility that
PLDTs franchise could be revoked, a dire consequence directly affecting petitioners interest as a stockholder.
More importantly, there is no question that the instant petition raises matters of transcendental importance to the public. The fundamental and threshold
legal issue in this case, involving the national economy and the economic welfare of the Filipino people, far outweighs any perceived impediment in the
legal personality of the petitioner to bring this action.
In Chavez v. PCGG,24 the Court upheld the right of a citizen to bring a suit on matters of transcendental importance to the public, thus:
In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of
a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is
interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action . In the aforesaid
case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973
Constitution, in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners legal standing, the Court declared that the right they sought to be enforced is a public right recognized by no
less than the fundamental law of the land.
Legaspi v. Civil Service Commission, while reiterating Taada, further declared that when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general
public which possesses the right.
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been involved under the questioned contract for the
development, management and operation of the Manila International Container Terminal, public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of the country and the magnitude of the financial consideration
involved. We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the
petitioners standing. (Emphasis supplied)
Clearly, since the instant petition, brought by a citizen, involves matters of transcendental public importance, the petitioner has the requisite locus standi.
Definition of the Term "Capital" in
Section 11, Article XII of the 1987 Constitution
Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution mandates the Filipinization of public utilities, to wit:
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is
owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither
shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when
the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and
managing officers of such corporation or association must be citizens of the Philippines. (Emphasis supplied)
The above provision substantially reiterates Section 5, Article XIV of the 1973 Constitution, thus:
Section 5. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of the capital of which
is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither
shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the National
Assembly when the public interest so requires. The State shall encourage equity participation in public utilities by the general public. The participation of
foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in the capital thereof. (Emphasis
supplied)
The foregoing provision in the 1973 Constitution reproduced Section 8, Article XIV of the 1935 Constitution, viz:
Section 8. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or other entities organized under the laws of the Philippines sixty per centum of the capital of which is
owned by citizens of the Philippines, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty
years. No franchise or right shall be granted to any individual, firm, or corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the public interest so requires. (Emphasis supplied)
Father Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional Commission, reminds us that the Filipinization provision in the 1987
Constitution is one of the products of the spirit of nationalism which gripped the 1935 Constitutional Convention. 25 The 1987 Constitution "provides for
the Filipinization of public utilities by requiring that any form of authorization for the operation of public utilities should be granted only to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such
citizens. The provision is [an express] recognition of the sensitive and vital position of public utilities both in the national economy and for
national security."26 The evident purpose of the citizenship requirement is to prevent aliens from assuming control of public utilities, which may be
inimical to the national interest. 27 This specific provision explicitly reserves to Filipino citizens control of public utilities, pursuant to an overriding

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economic goal of the 1987 Constitution: to "conserve and develop our patrimony" 28 and ensure "a self-reliant and independent national
economy effectively controlled by Filipinos."29
Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum nationality requirement prescribed in Section 11, Article
XII of the Constitution. Hence, for a corporation to be granted authority to operate a public utility, at least 60 percent of its "capital" must be owned by
Filipino citizens.
The crux of the controversy is the definition of the term "capital." Does the term "capital" in Section 11, Article XII of the Constitution refer to common
shares or to the total outstanding capital stock (combined total of common and non-voting preferred shares)?
Petitioner submits that the 40 percent foreign equity limitation in domestic public utilities refers only to common shares because such shares are entitled
to vote and it is through voting that control over a corporation is exercised. Petitioner posits that the term "capital" in Section 11, Article XII of the
Constitution refers to "the ownership of common capital stock subscribed and outstanding, which class of shares alone, under the corporate set-up of
PLDT, can vote and elect members of the board of directors." It is undisputed that PLDTs non-voting preferred shares are held mostly by Filipino
citizens.30 This arose from Presidential Decree No. 217, 31 issued on 16 June 1973 by then President Ferdinand Marcos, requiring every applicant of a
PLDT telephone line to subscribe to non-voting preferred shares to pay for the investment cost of installing the telephone line. 32
Petitioners-in-intervention basically reiterate petitioners arguments and adopt petitioners definition of the term "capital." 33 Petitioners-in-intervention
allege that "the approximate foreign ownership of common capital stock of PLDT x x x already amounts to at least 63.54% of the total outstanding
common stock," which means that foreigners exercise significant control over PLDT, patently violating the 40 percent foreign equity limitation in public
utilities prescribed by the Constitution.
Respondents, on the other hand, do not offer any definition of the term "capital" in Section 11, Article XII of the Constitution. More importantly, private
respondents Nazareno and Pangilinan of PLDT do not dispute that more than 40 percent of the common shares of PLDT are held by foreigners.
In particular, respondent Nazarenos Memorandum, consisting of 73 pages, harps mainly on the procedural infirmities of the petition and the supposed
violation of the due process rights of the "affected foreign common shareholders." Respondent Nazareno does not deny petitioners allegation of
foreigners dominating the common shareholdings of PLDT. Nazareno stressed mainly that the petition "seeks to divest foreign common
shareholders purportedly exceeding 40% of the total common shareholdings in PLDT of their ownership over their shares ." Thus, "the foreign
natural and juridical PLDT shareholders must be impleaded in this suit so that they can be heard." 34 Essentially, Nazareno invokes denial of due process
on behalf of the foreign common shareholders.
While Nazareno does not introduce any definition of the term "capital," he states that "among the factual assertions that need to be established to
counter petitioners allegations is the uniform interpretation by government agencies (such as the SEC), institutions and corporations (such
as the Philippine National Oil Company-Energy Development Corporation or PNOC-EDC) of including both preferred shares and common
shares in "controlling interest" in view of testing compliance with the 40% constitutional limitation on foreign ownership in public utilities."35
Similarly, respondent Manuel V. Pangilinan does not define the term "capital" in Section 11, Article XII of the Constitution. Neither does he refute
petitioners claim of foreigners holding more than 40 percent of PLDTs common shares. Instead, respondent Pangilinan focuses on the procedural flaws
of the petition and the alleged violation of the due process rights of foreigners. Respondent Pangilinan emphasizes in his Memorandum (1) the absence
of this Courts jurisdiction over the petition; (2) petitioners lack of standing; (3) mootness of the petition; (4) non-availability of declaratory relief; and (5)
the denial of due process rights. Moreover, respondent Pangilinan alleges that the issue should be whether "owners of shares in PLDT as well as
owners of shares in companies holding shares in PLDT may be required to relinquish their shares in PLDT and in those companies without any law
requiring them to surrender their shares and also without notice and trial."
Respondent Pangilinan further asserts that "Section 11, [Article XII of the Constitution] imposes no nationality requirement on the shareholders
of the utility company as a condition for keeping their shares in the utility company." According to him, "Section 11 does not authorize taking one
persons property (the shareholders stock in the utility company) on the basis of another partys alleged failure to satisfy a requirement that is a condition
only for that other partys retention of another piece of property (the utility company being at least 60% Filipino-owned to keep its franchise)." 36
The OSG, representing public respondents Secretary Margarito Teves, Undersecretary John P. Sevilla, Commissioner Ricardo Abcede, and Chairman
Fe Barin, is likewise silent on the definition of the term "capital." In its Memorandum 37 dated 24 September 2007, the OSG also limits its discussion on
the supposed procedural defects of the petition, i.e. lack of standing, lack of jurisdiction, non-inclusion of interested parties, and lack of basis for
injunction. The OSG does not present any definition or interpretation of the term "capital" in Section 11, Article XII of the Constitution. The OSG contends
that "the petition actually partakes of a collateral attack on PLDTs franchise as a public utility," which in effect requires a "full-blown trial where all the
parties in interest are given their day in court."38
Respondent Francisco Ed Lim, impleaded as President and Chief Executive Officer of the Philippine Stock Exchange (PSE), does not also define the
term "capital" and seeks the dismissal of the petition on the following grounds: (1) failure to state a cause of action against Lim; (2) the PSE allegedly
implemented its rules and required all listed companies, including PLDT, to make proper and timely disclosures; and (3) the reliefs prayed for in the
petition would adversely impact the stock market.
In the earlier case of Fernandez v. Cojuangco, petitioner Fernandez who claimed to be a stockholder of record of PLDT, contended that the term
"capital" in the 1987 Constitution refers to shares entitled to vote or the common shares. Fernandez explained thus:
The forty percent (40%) foreign equity limitation in public utilities prescribed by the Constitution refers to ownership of shares of stock entitled to vote,
i.e., common shares, considering that it is through voting that control is being exercised. x x x

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Obviously, the intent of the framers of the Constitution in imposing limitations and restrictions on fully nationalized and partially nationalized activities is
for Filipino nationals to be always in control of the corporation undertaking said activities. Otherwise, if the Trial Courts ruling upholding respondents
arguments were to be given credence, it would be possible for the ownership structure of a public utility corporation to be divided into one percent (1%)
common stocks and ninety-nine percent (99%) preferred stocks. Following the Trial Courts ruling adopting respondents arguments, the common shares
can be owned entirely by foreigners thus creating an absurd situation wherein foreigners, who are supposed to be minority shareholders, control the
public utility corporation.
xxxx
Thus, the 40% foreign ownership limitation should be interpreted to apply to both the beneficial ownership and the controlling interest.
xxxx
Clearly, therefore, the forty percent (40%) foreign equity limitation in public utilities prescribed by the Constitution refers to ownership of shares of stock
entitled to vote, i.e., common shares. Furthermore, ownership of record of shares will not suffice but it must be shown that the legal and beneficial
ownership rests in the hands of Filipino citizens. Consequently, in the case of petitioner PLDT, since it is already admitted that the voting interests of
foreigners which would gain entry to petitioner PLDT by the acquisition of SMART shares through the Questioned Transactions is equivalent to 82.99%,
and the nominee arrangements between the foreign principals and the Filipino owners is likewise admitted, there is, therefore, a violation of Section 11,
Article XII of the Constitution.
Parenthetically, the Opinions dated February 15, 1988 and April 14, 1987 cited by the Trial Court to support the proposition that the meaning of the word
"capital" as used in Section 11, Article XII of the Constitution allegedly refers to the sum total of the shares subscribed and paid-in by the shareholder
and it allegedly is immaterial how the stock is classified, whether as common or preferred, cannot stand in the face of a clear legislative policy as stated
in the FIA which took effect in 1991 or way after said opinions were rendered, and as clarified by the above-quoted Amendments. In this regard, suffice it
to state that as between the law and an opinion rendered by an administrative agency, the law indubitably prevails. Moreover, said Opinions are merely
advisory and cannot prevail over the clear intent of the framers of the Constitution.
In the same vein, the SECs construction of Section 11, Article XII of the Constitution is at best merely advisory for it is the courts that finally determine
what a law means.39
On the other hand, respondents therein, Antonio O. Cojuangco, Manuel V. Pangilinan, Carlos A. Arellano, Helen Y. Dee, Magdangal B. Elma, Mariles
Cacho-Romulo, Fr. Bienvenido F. Nebres, Ray C. Espinosa, Napoleon L. Nazareno, Albert F. Del Rosario, and Orlando B. Vea, argued that the term
"capital" in Section 11, Article XII of the Constitution includes preferred shares since the Constitution does not distinguish among classes of stock, thus:
16. The Constitution applies its foreign ownership limitation on the corporations "capital," without distinction as to classes of shares. x x x
In this connection, the Corporation Code which was already in force at the time the present (1987) Constitution was drafted defined outstanding
capital stock as follows:
Section 137. Outstanding capital stock defined. The term "outstanding capital stock", as used in this Code, means the total shares of stock issued
under binding subscription agreements to subscribers or stockholders, whether or not fully or partially paid, except treasury shares.
Section 137 of the Corporation Code also does not distinguish between common and preferred shares, nor exclude either class of shares, in
determining the outstanding capital stock (the "capital") of a corporation. Consequently, petitioners suggestion to reckon PLDTs foreign equity only on
the basis of PLDTs outstanding common shares is without legal basis. The language of the Constitution should be understood in the sense it has in
common use.
xxxx
17. But even assuming that resort to the proceedings of the Constitutional Commission is necessary, there is nothing in the Record of the Constitutional
Commission (Vol. III) which petitioner misleadingly cited in the Petition x x x which supports petitioners view that only common shares should form
the basis for computing a public utilitys foreign equity.
xxxx
18. In addition, the SEC the government agency primarily responsible for implementing the Corporation Code, and which also has the responsibility of
ensuring compliance with the Constitutions foreign equity restrictions as regards nationalized activities x x x has categorically ruled that both common
and preferred shares are properly considered in determining outstanding capital stock and the nationality composition thereof. 40
We agree with petitioner and petitioners-in-intervention. The term "capital" in Section 11, Article XII of the Constitution refers only to shares of stock
entitled to vote in the election of directors, and thus in the present case only to common shares, 41 and not to the total outstanding capital stock
comprising both common and non-voting preferred shares.
The Corporation Code of the Philippines42 classifies shares as common or preferred, thus:
Sec. 6. Classification of shares. - The shares of stock of stock corporations may be divided into classes or series of shares, or both, any of which classes
or series of shares may have such rights, privileges or restrictions as may be stated in the articles of incorporation: Provided, That no share may be

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deprived of voting rights except those classified and issued as "preferred" or "redeemable" shares, unless otherwise provided in this Code :
Provided, further, That there shall always be a class or series of shares which have complete voting rights. Any or all of the shares or series of shares
may have a par value or have no par value as may be provided for in the articles of incorporation: Provided, however, That banks, trust companies,
insurance companies, public utilities, and building and loan associations shall not be permitted to issue no-par value shares of stock.
Preferred shares of stock issued by any corporation may be given preference in the distribution of the assets of the corporation in case of liquidation and
in the distribution of dividends, or such other preferences as may be stated in the articles of incorporation which are not violative of the provisions of this
Code: Provided, That preferred shares of stock may be issued only with a stated par value. The Board of Directors, where authorized in the articles of
incorporation, may fix the terms and conditions of preferred shares of stock or any series thereof: Provided, That such terms and conditions shall be
effective upon the filing of a certificate thereof with the Securities and Exchange Commission.
Shares of capital stock issued without par value shall be deemed fully paid and non-assessable and the holder of such shares shall not be liable to the
corporation or to its creditors in respect thereto: Provided; That shares without par value may not be issued for a consideration less than the value of five
(P5.00) pesos per share: Provided, further, That the entire consideration received by the corporation for its no-par value shares shall be treated as
capital and shall not be available for distribution as dividends.
A corporation may, furthermore, classify its shares for the purpose of insuring compliance with constitutional or legal requirements.
Except as otherwise provided in the articles of incorporation and stated in the certificate of stock, each share shall be equal in all respects to every other
share.
Where the articles of incorporation provide for non-voting shares in the cases allowed by this Code, the holders of such shares shall nevertheless be
entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another corporation or other corporations;
7. Investment of corporate funds in another corporation or business in accordance with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the vote necessary to approve a particular corporate act as provided in this Code shall be
deemed to refer only to stocks with voting rights.
Indisputably, one of the rights of a stockholder is the right to participate in the control or management of the corporation. 43 This is exercised through his
vote in the election of directors because it is the board of directors that controls or manages the corporation. 44 In the absence of provisions in the articles
of incorporation denying voting rights to preferred shares, preferred shares have the same voting rights as common shares. However, preferred
shareholders are often excluded from any control, that is, deprived of the right to vote in the election of directors and on other matters, on the theory that
the preferred shareholders are merely investors in the corporation for income in the same manner as bondholders. 45 In fact, under the Corporation Code
only preferred or redeemable shares can be deprived of the right to vote. 46 Common shares cannot be deprived of the right to vote in any corporate
meeting, and any provision in the articles of incorporation restricting the right of common shareholders to vote is invalid. 47
Considering that common shares have voting rights which translate to control, as opposed to preferred shares which usually have no voting rights, the
term "capital" in Section 11, Article XII of the Constitution refers only to common shares. However, if the preferred shares also have the right to vote in
the election of directors, then the term "capital" shall include such preferred shares because the right to participate in the control or management of the
corporation is exercised through the right to vote in the election of directors. In short, the term "capital" in Section 11, Article XII of the Constitution
refers only to shares of stock that can vote in the election of directors.
This interpretation is consistent with the intent of the framers of the Constitution to place in the hands of Filipino citizens the control and management of
public utilities. As revealed in the deliberations of the Constitutional Commission, "capital" refers to the voting stock or controlling interest of a
corporation, to wit:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and foreign equity; namely, 60-40 in Section 3, 60-40 in Section 9
and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.

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MR. NOLLEDO. In teaching law, we are always faced with this question: "Where do we base the equity requirement, is it on the authorized capital stock,
on the subscribed capital stock, or on the paid-up capital stock of a corporation"? Will the Committee please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the members of the team from the UP Law Center who provided us a draft. The phrase that is
contained here which we adopted from the UP draft is "60 percent of voting stock."
MR. NOLLEDO. That must be based on the subscribed capital stock, because unless declared delinquent, unpaid capital stock shall be entitled to vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in another corporation, say, a corporation with 60-40 percent equity invests in another corporation
which is permitted by the Corporation Code, does the Committee adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee.
MR. NOLLEDO. Therefore, we need additional Filipino capital?
MR. VILLEGAS. Yes.48
xxxx
MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock or controlling interest."
MR. AZCUNA. Hence, without the Davide amendment, the committee report would read: "corporations or associations at least sixty percent of whose
CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let us say 40 percent of the capital is owned by them,
but it is the voting capital, whereas, the Filipinos own the nonvoting shares. So we can have a situation where the corporation is controlled by
foreigners despite being the minority because they have the voting capital. That is the anomaly that would result here.
MR. BENGZON. No, the reason we eliminated the word "stock" as stated in the 1973 and 1935 Constitutions is that according to
Commissioner Rodrigo, there are associations that do not have stocks. That is why we say "CAPITAL."
MR. AZCUNA. We should not eliminate the phrase "controlling interest."
MR. BENGZON. In the case of stock corporations, it is assumed.49 (Emphasis supplied)
Thus, 60 percent of the "capital" assumes, or should result in, "controlling interest" in the corporation. Reinforcing this interpretation of the term
"capital," as referring to controlling interest or shares entitled to vote, is the definition of a "Philippine national" in the Foreign Investments Act of
1991,50 to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen of the Philippines; or a domestic partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines; or a corporation organized abroad and registered as doing
business in the Philippines under the Corporation Code of which one hundred percent (100%) of the capital stock outstanding and entitled to vote is
wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national
and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino
stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock
outstanding and entitled to vote of each of both corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of
the members of the Board of Directors of each of both corporations must be citizens of the Philippines, in order that the corporation, shall be considered
a "Philippine national." (Emphasis supplied)
In explaining the definition of a "Philippine national," the Implementing Rules and Regulations of the Foreign Investments Act of 1991 provide:

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b. "Philippine national" shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by the citizens of the Philippines;
or a corporation organized under the laws of the Philippines of which at least sixty percent [60%] of the capital stock outstanding and entitled
to vote is owned and held by citizens of the Philippines; or a trustee of funds for pension or other employee retirement or separation benefits, where
the trustee is a Philippine national and at least sixty percent [60%] of the fund will accrue to the benefit of the Philippine nationals; Provided, that where a
corporation its non-Filipino stockholders own stocks in a Securities and Exchange Commission [SEC] registered enterprise, at least sixty percent [60%]
of the capital stock outstanding and entitled to vote of both corporations must be owned and held by citizens of the Philippines and at least sixty percent
[60%] of the members of the Board of Directors of each of both corporation must be citizens of the Philippines, in order that the corporation shall be
considered a Philippine national. The control test shall be applied for this purpose.
Compliance with the required Filipino ownership of a corporation shall be determined on the basis of outstanding capital stock whether fully
paid or not, but only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not enough to meet the required
Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting rights of
which have been assigned or transferred to aliens cannot be considered held by Philippine citizens or Philippine nationals.
Individuals or juridical entities not meeting the aforementioned qualifications are considered as non-Philippine nationals. (Emphasis supplied)
Mere legal title is insufficient to meet the 60 percent Filipino-owned "capital" required in the Constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent of the outstanding
capital stock must rest in the hands of Filipino nationals in accordance with the constitutional mandate. Otherwise, the corporation is "considered as nonPhilippine national[s]."
Under Section 10, Article XII of the Constitution, Congress may "reserve to citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments." Thus, in
numerous laws Congress has reserved certain areas of investments to Filipino citizens or to corporations at least sixty percent of the "capital" of which
is owned by Filipino citizens. Some of these laws are: (1) Regulation of Award of Government Contracts or R.A. No. 5183; (2) Philippine Inventors
Incentives Act or R.A. No. 3850; (3) Magna Carta for Micro, Small and Medium Enterprises or R.A. No. 6977; (4) Philippine Overseas Shipping
Development Act or R.A. No. 7471; (5) Domestic Shipping Development Act of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009 or
R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No. 1521. Hence, the term " capital" in Section 11, Article XII of the Constitution is also used in
the same context in numerous laws reserving certain areas of investments to Filipino citizens.
To construe broadly the term "capital" as the total outstanding capital stock, including both common and non-voting preferred shares, grossly
contravenes the intent and letter of the Constitution that the "State shall develop a self-reliant and independent national economy effectively
controlled by Filipinos." A broad definition unjustifiably disregards who owns the all-important voting stock, which necessarily equates to control of the
public utility.
We shall illustrate the glaring anomaly in giving a broad definition to the term "capital." Let us assume that a corporation has 100 common shares owned
by foreigners and 1,000,000 non-voting preferred shares owned by Filipinos, with both classes of share having a par value of one peso ( P1.00) per
share. Under the broad definition of the term "capital," such corporation would be considered compliant with the 40 percent constitutional limit on foreign
equity of public utilities since the overwhelming majority, or more than 99.999 percent, of the total outstanding capital stock is Filipino owned. This is
obviously absurd.
In the example given, only the foreigners holding the common shares have voting rights in the election of directors, even if they hold only 100 shares.
The foreigners, with a minuscule equity of less than 0.001 percent, exercise control over the public utility. On the other hand, the Filipinos, holding more
than 99.999 percent of the equity, cannot vote in the election of directors and hence, have no control over the public utility. This starkly circumvents the
intent of the framers of the Constitution, as well as the clear language of the Constitution, to place the control of public utilities in the hands of Filipinos. It
also renders illusory the State policy of an independent national economy effectively controlled by Filipinos.
The example given is not theoretical but can be found in the real world, and in fact exists in the present case.
Holders of PLDT preferred shares are explicitly denied of the right to vote in the election of directors. PLDTs Articles of Incorporation expressly state that
"the holders of Serial Preferred Stock shall not be entitled to vote at any meeting of the stockholders for the election of directors or for any
other purpose or otherwise participate in any action taken by the corporation or its stockholders, or to receive notice of any meeting of stockholders." 51
On the other hand, holders of common shares are granted the exclusive right to vote in the election of directors. PLDTs Articles of Incorporation 52 state
that "each holder of Common Capital Stock shall have one vote in respect of each share of such stock held by him on all matters voted upon by the
stockholders, and the holders of Common Capital Stock shall have the exclusive right to vote for the election of directors and for all other
purposes."53
In short, only holders of common shares can vote in the election of directors, meaning only common shareholders exercise control over PLDT.
Conversely, holders of preferred shares, who have no voting rights in the election of directors, do not have any control over PLDT. In fact, under PLDTs
Articles of Incorporation, holders of common shares have voting rights for all purposes, while holders of preferred shares have no voting right for any
purpose whatsoever.
It must be stressed, and respondents do not dispute, that foreigners hold a majority of the common shares of PLDT. In fact, based on PLDTs 2010
General Information Sheet (GIS),54 which is a document required to be submitted annually to the Securities and Exchange Commission, 55 foreigners hold
120,046,690 common shares of PLDT whereas Filipinos hold only 66,750,622 common shares. 56 In other words, foreigners hold 64.27% of the total
number of PLDTs common shares, while Filipinos hold only 35.73%. Since holding a majority of the common shares equates to control, it is clear that

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foreigners exercise control over PLDT. Such amount of control unmistakably exceeds the allowable 40 percent limit on foreign ownership of public
utilities expressly mandated in Section 11, Article XII of the Constitution.
Moreover, the Dividend Declarations of PLDT for 2009, 57 as submitted to the SEC, shows that per share the SIP 58 preferred shares earn a pittance in
dividends compared to the common shares. PLDT declared dividends for the common shares at P70.00 per share, while the declared dividends for the
preferred shares amounted to a measly P1.00 per share.59 So the preferred shares not only cannot vote in the election of directors, they also have very
little and obviously negligible dividend earning capacity compared to common shares.
As shown in PLDTs 2010 GIS,60 as submitted to the SEC, the par value of PLDT common shares is P5.00 per share, whereas the par value of preferred
shares is P10.00 per share. In other words, preferred shares have twice the par value of common shares but cannot elect directors and have only 1/70
of the dividends of common shares. Moreover, 99.44% of the preferred shares are owned by Filipinos while foreigners own only a minuscule 0.56% of
the preferred shares.61 Worse, preferred shares constitute 77.85% of the authorized capital stock of PLDT while common shares constitute only
22.15%.62 This undeniably shows that beneficial interest in PLDT is not with the non-voting preferred shares but with the common shares, blatantly
violating the constitutional requirement of 60 percent Filipino control and Filipino beneficial ownership in a public utility.
The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipinos in accordance with the constitutional
mandate. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is constitutionally required
for the States grant of authority to operate a public utility. The undisputed fact that the PLDT preferred shares, 99.44% owned by Filipinos, are nonvoting and earn only 1/70 of the dividends that PLDT common shares earn, grossly violates the constitutional requirement of 60 percent Filipino control
and Filipino beneficial ownership of a public utility.
In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent of the dividends, of PLDT. This directly
contravenes the express command in Section 11, Article XII of the Constitution that "[n]o franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to x x x corporations x x x organized under the laws of the Philippines, at least sixty per centum of
whose capital is owned by such citizens x x x."
To repeat, (1) foreigners own 64.27% of the common shares of PLDT, which class of shares exercises the soleright to vote in the election of directors,
and thus exercise control over PLDT; (2) Filipinos own only 35.73% of PLDTs common shares, constituting a minority of the voting stock, and thus do
not exercise control over PLDT; (3) preferred shares, 99.44% owned by Filipinos, have no voting rights; (4) preferred shares earn only 1/70 of the
dividends that common shares earn;63 (5) preferred shares have twice the par value of common shares; and (6) preferred shares constitute 77.85% of
the authorized capital stock of PLDT and common shares only 22.15%. This kind of ownership and control of a public utility is a mockery of the
Constitution.
Incidentally, the fact that PLDT common shares with a par value of P5.00 have a current stock market value ofP2,328.00 per share,64 while PLDT
preferred shares with a par value of P10.00 per share have a current stock market value ranging from only P10.92 to P11.06 per share,65 is a glaring
confirmation by the market that control and beneficial ownership of PLDT rest with the common shares, not with the preferred shares.
Indisputably, construing the term "capital" in Section 11, Article XII of the Constitution to include both voting and non-voting shares will result in the abject
surrender of our telecommunications industry to foreigners, amounting to a clear abdication of the States constitutional duty to limit control of public
utilities to Filipino citizens. Such an interpretation certainly runs counter to the constitutional provision reserving certain areas of investment to Filipino
citizens, such as the exploitation of natural resources as well as the ownership of land, educational institutions and advertising businesses. The Court
should never open to foreign control what the Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the
national interest. The Court must perform its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words of the
Constitution, "a self-reliant and independent national economy effectively controlled by Filipinos."
Section 11, Article XII of the Constitution, like other provisions of the Constitution expressly reserving to Filipinosspecific areas of investment, such as the
development of natural resources and ownership of land, educational institutions and advertising business, is self-executing. There is no need for
legislation to implement these self-executing provisions of the Constitution. The rationale why these constitutional provisions are self-executing was
explained in Manila Prince Hotel v. GSIS,66 thus:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the contrary is clearly
intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute. (Emphasis supplied)
In Manila Prince Hotel, even the Dissenting Opinion of then Associate Justice Reynato S. Puno, later Chief Justice, agreed that constitutional provisions
are presumed to be self-executing. Justice Puno stated:
Courts as a rule consider the provisions of the Constitution as self-executing, rather than as requiring future legislation for their enforcement. The reason
is not difficult to discern. For if they are not treated as self-executing, the mandate of the fundamental law ratified by the sovereign people can
be easily ignored and nullified by Congress. Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath
to constitutional rights but congressional inaction should not suffocate them.
Thus, we have treated as self-executing the provisions in the Bill of Rights on arrests, searches and seizures, the rights of a person under custodial
investigation, the rights of an accused, and the privilege against self-incrimination. It is recognized that legislation is unnecessary to enable courts to

84

effectuate constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property. The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of property for public use without just compensation. (Emphasis supplied)
Thus, in numerous cases,67 this Court, even in the absence of implementing legislation, applied directly the provisions of the 1935, 1973 and 1987
Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo,68this Court ruled:
x x x As the Constitution is silent as to the effects or consequences of a sale by a citizen of his land to an alien, and as both the citizen and the alien
have violated the law, none of them should have a recourse against the other, and it should only be the State that should be allowed to intervene and
determine what is to be done with the property subject of the violation. We have said that what the State should do or could do in such matters is a
matter of public policy, entirely beyond the scope of judicial authority. (Dinglasan, et al. vs. Lee Bun Ting, et al., 6 G. R. No. L-5996, June 27,
1956.) While the legislature has not definitely decided what policy should be followed in cases of violations against the constitutional
prohibition, courts of justice cannot go beyond by declaring the disposition to be null and void as violative of the Constitution. x x x (Emphasis
supplied)
To treat Section 11, Article XII of the Constitution as not self-executing would mean that since the 1935 Constitution, or over the last 75 years, not one of
the constitutional provisions expressly reserving specific areas of investments to corporations, at least 60 percent of the "capital" of which is owned by
Filipinos, was enforceable. In short, the framers of the 1935, 1973 and 1987 Constitutions miserably failed to effectively reserve to Filipinos specific
areas of investment, like the operation by corporations of public utilities, the exploitation by corporations of mineral resources, the ownership by
corporations of real estate, and the ownership of educational institutions. All the legislatures that convened since 1935 also miserably failed to enact
legislations to implement these vital constitutional provisions that determine who will effectively control the national economy, Filipinos or foreigners. This
Court cannot allow such an absurd interpretation of the Constitution.
This Court has held that the SEC "has both regulatory and adjudicative functions." 69 Under its regulatory functions, the SEC can be compelled by
mandamus to perform its statutory duty when it unlawfully neglects to perform the same. Under its adjudicative or quasi-judicial functions, the SEC can
be also be compelled by mandamus to hear and decide a possible violation of any law it administers or enforces when it is mandated by law to
investigate such violation.1awphi1
Under Section 17(4)70 of the Corporation Code, the SEC has the regulatory function to reject or disapprove the Articles of Incorporation of any
corporation where "the required percentage of ownership of the capital stock to be owned by citizens of the Philippines has not been complied
with as required by existing laws or the Constitution." Thus, the SEC is the government agency tasked with the statutory duty to enforce the
nationality requirement prescribed in Section 11, Article XII of the Constitution on the ownership of public utilities. This Court, in a petition for declaratory
relief that is treated as a petition for mandamus as in the present case, can direct the SEC to perform its statutory duty under the law, a duty that the
SEC has apparently unlawfully neglected to do based on the 2010 GIS that respondent PLDT submitted to the SEC.
Under Section 5(m) of the Securities Regulation Code, 71 the SEC is vested with the "power and function" to "suspend or revoke, after proper notice
and hearing, the franchise or certificate of registration of corporations, partnerships or associations, upon any of the grounds provided by
law." The SEC is mandated under Section 5(d) of the same Code with the "power and function" to "investigate x x x the activities of persons to
ensure compliance" with the laws and regulations that SEC administers or enforces. The GIS that all corporations are required to submit to SEC
annually should put the SEC on guard against violations of the nationality requirement prescribed in the Constitution and existing laws. This Court can
compel the SEC, in a petition for declaratory relief that is treated as a petition for mandamus as in the present case, to hear and decide a possible
violation of Section 11, Article XII of the Constitution in view of the ownership structure of PLDTs voting shares, as admitted by respondents and as
stated in PLDTs 2010 GIS that PLDT submitted to SEC.
WHEREFORE, we PARTLY GRANT the petition and rule that the term "capital" in Section 11, Article XII of the 1987 Constitution refers only to shares of
stock entitled to vote in the election of directors, and thus in the present case only to common shares, and not to the total outstanding capital stock
(common and non-voting preferred shares). Respondent Chairperson of the Securities and Exchange Commission is DIRECTED to apply this definition
of the term "capital" in determining the extent of allowable foreign ownership in respondent Philippine Long Distance Telephone Company, and if there is
a violation of Section 11, Article XII of the Constitution, to impose the appropriate sanctions under the law.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

TERESITA J. LEONARDO-DE CASTRO


Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

85

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE C. MENDOZA
Associate Justice

MARIA LOURDES P. A. SERENO


Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
1

Rollo (Vol. I) , pp. 15-103, (Vol. II), pp. 762-768.

See Cojuangco v. Sandiganbayan, G.R. No. 183278, 24 April 2009, 586 SCRA 790.

Section 11, Article XII of the 1987 Constitution provides:

ARTICLE
NATIONAL ECONOMY AND PATRIMONY

XII

xxxx
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such
citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of
such corporation or association must be citizens of the Philippines.
4

Yuchengco v. Sandiganbayan, G.R. No. 149802, 20 January 2006, 479 SCRA 1.

Rollo, (Vol. II), p. 806.

Rollo (Vol. I), p. 23.

Id. at 23-24, 26.

Id. at 41.

Id.

10

Governed by Rule 63 of the Rules of Court. Section 1, Rule 63 of the Rules of Court states:

RULE 63
Declaratory Relief and Similar Remedies
Section 1. 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. (Bar
Matter No. 803, 17 February 1998)

86

11

Section 2, Rule 65 of the Rules of Court provides:

SEC. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-judicial
or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such incidental relief as law and justice may require.
xxxx
12

Section 3, Rule 65 of the Rules of Court states:

SEC. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the respondent.
xxxx
13

343 Phil. 539 (1997).

14

209 Phil. 1 (1983), citing Nacionalista Party v. Angelo Bautista, 85 Phil. 101, and Aquino v. Commission on Elections, 62 SCRA 275.

15

Supra note 13.

16

Adverted to in respondent Nazarenos Memorandum dated 27 September 2007. Rollo, p. 929. Nazareno stated: "In fact, in Fernandez v. Cojuangco,
which raised markedly similar issues, the Honorable Court refused to entertain the Petition directly filed with it and dismissed the same for violating the
principle of hierarchy of courts."
17

In a Resolution dated 9 June 2003.

18

Section 19, Article II, Constitution.

19

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The
State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the
measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fish- workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration,
development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.
20

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain.
21

Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such
higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

87

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and
priorities.
22

Section 4(2), Article XIV of the 1987 Constitution provides: "Educational institutions, other than those established by religious groups and
mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of
which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions.
The control and administration of educational institutions shall be vested in citizens of the Philippines.
x x x x"
23

Section 11(2), Article XVI of the 1987 Constitution provides: "The advertising industry is impressed with public interest, and shall be regulated by law for
the protection of consumers and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least seventy per centum of the capital of which is owned by such citizens shall be
allowed to engage in the advertising industry.
The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof,
and all the executive and managing officers of such entities must be citizens of the Philippines.
24

G.R. No. 130716, 9 December 1998, 299 SCRA 744 cited in Chavez v. Public Estates Authority, 433 Phil. 506 (2002). See also David v. MacapagalArroyo, G.R. No. 171396, 3 May 2006, 489 SCRA 160;Santiago v. Commission on Elections, G.R. No. 127325, 19 March 1997, 270 SCRA
106; Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110 (1994).
25

Bernas, The Constitution of the Republic of the Philippines, p. 452, citing Smith, Bell and Co. v. Natividad, 40 Phil. 136, 148 (1919); Luzon Stevedoring
Corporation v. Anti-Dummy Board, 46 SCRA 474, 490 (1972).
26

Id.

27

De Leon, Hector, Philippine Constitutional Law (Principles and Cases), Volume 2, 1999 Ed., p. 848.

28

Preamble, 1987 Constitution; De Leon, Hector, Philippine Constitutional Law (Principles and Cases), Volume 2, 1999 Ed., p. 788.

29

Section 19, Article II, Constitution.

30

http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.10%29_final.pdf

31

ESTABLISHING BASIC POLICIES FOR THE TELEPHONE INDUSTRY, AMENDING FOR THE PURPOSE THE PERTINENT PROVISIONS OF
COMMONWEALTH ACT NO. 146, AS AMENDED, OTHERWISE KNOWN AS THE PUBLIC SERVICE ACT, AS AMENDED, AND ALL INCONSISTENT
LEGISLATIVE AND MUNICIPAL FRANCHISE OF THE PHILIPPINE LONG DISTANCE TELEPHONE COMPANY UNDER ACT NO. 3436, AS
AMENDED, AND ALL INCONSISTENT LEGISLATIVE AND MUNICIPAL FRANCHISES INCLUDING OTHER EXISTING LAWS.
32

Upon approval by the National Telecommunications Commission, this mandatory requirement to subscribe to non-voting preferred shares was made
optional starting 22 April 2003. See PLDT 20- F 2005 filing with the United States Securities and Exchange Commission
athttp://www.wikinvest.com/stock/Philippine_Long_Distance_Telephone Company_(PHI)/ Filing/20-F/25/F2923101. See also Philippine Consumers
Foundation, Inc. v. NTC and PLDT, G.R. No. L-63318, 18 April 1984, on the origin and rationale of the SIP.
33

Rollo (Vol. I), pp. 414-451.

34

Rollo (Vol. II), p. 991.

35

Id. at 951.

36

Id. at 838.

37

Id. at 898-923.

38

Rollo (Vol. II), p. 913.

39

Rollo (G.R. No. 157360), pp. 55-62.

40

Rollo (G.R. No. 157360), pp. 1577-1583.

41

In PLDTs case, the preferred stock is non-voting, except as specifically provided by law.

88

(http://www.pldt.com.ph/investor/Documents/a2d211230ec3436eab66b41d3d107cfc4Q2004FSwithopinion.pdf)
42

Batas Pambansa Blg. 68.

43

As stated in the Corporation Code.

44

See http://www.congress.gov.ph/download/researches/rrb_0303_5.pdf

45

See http://www.congress.gov.ph/download/researches/rrb_0303_5.pdf

46

Section 6, BP Blg. 68 or The Corporation Code.

47

Agpalo, Ruben E., Comments on the Corporation Code of the Philippines, 2001 Second Edition, p. 36.

48

Record of the Constitutional Commission, Vol. III, pp. 255-256.

49

Id. at 360.

50

Republic Act No. 7042 entitled "AN ACT TO PROMOTE FOREIGN INVESTMENTS, PRESCRIBE THE PROCEDURES FOR REGISTERING
ENTERPRISES DOING BUSINESS IN THE PHILIPPINES AND FOR OTHER PURPOSES."
51

Rollo (G.R. No. 157360), Vol. I, p. 348.

It must be noted that under PLDTs Articles of Incorporation, the PLDT Board of Directors is expressly authorized to determine, among others, with
respect to each series of Serial Preferred Stock:
xxxx
(b) the dividend rate, if any, on the shares of such series (which, if and to the extent the Board of Directors, in its sole discretion, shall deem appropriate
under the circumstances, shall be fixed considering the rate of return on similar securities at the time of issuance of such shares), the terms and
conditions upon which and the periods with respect to which dividends shall be payable, whether and upon what conditions such dividends shall be
cumulative and, if cumulative, the date or dates from which dividends shall accumulate;
c. whether or not the shares of such series shall be redeemable, the limitations with respect to such redemption, the time or times when and the manner
in which such shares shall be redeemable (including the manner of selecting shares of such series for redemption if less than all shares are to be
redeemed) and the price or prices at which such shares shall be redeemable, which may not be less than (i) the par value thereof plus (ii) accrued and
unpaid dividends thereon, nor more than (i) 110% of the par value thereof plus (ii) accrued and unpaid dividends thereon;
d. whether or not the shares of such series shall be subject to the operation of a purchase, retirement or sinking fund, and, if so, whether and upon what
conditions such purchase, retirement or sinking fund shall be cumulative or non-cumulative, the extent to which and the manner in which such fund shall
be applied to the purchase or redemption of the shares of such series for retirement or to other corporate purposes and the terms and provisions relative
to the operation thereof;
(e) the rights to which the holders of shares of such series shall be entitled upon the voluntary or involuntary liquidation, dissolution, distribution of assets
or winding up of the corporation, which rights may vary depending on whether such liquidation, dissolution, distribution or winding up is voluntary or
involuntary, and if voluntary, may vary at different dates, provided, however, that the amount which the holders of shares of such series shall be entitled
to receive in the event of any voluntary or involuntary liquidation, dissolution, distribution of assets or winding up of the corporation
Further, "the holders of Serial Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally
available therefore, preferential cash dividends at the rate, under the terms and conditions, for the periods and on the dates fixed by the resolution or
resolutions of the Board of Directors, x x x and no more, before any dividends on the Common Capital Stock (other than dividends payable in Common
Capital Stock) shall be paid or set apart for payment with respect to the same dividend period. All shares of Preferred Stock of all series shall be of equal
rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same
and, when the stated dividends are not paid in full, the shares of all series of Serial Preferred Stock shall share ratably in the payment of dividends
including accumulations, if any, in accordance with the sums which would be payable on such shares if all dividends were declared and paid in full,
provided, however, that any two or more series of Serial Preferred Stock may differ from each other as to the existence and extent of the right to
cumulative dividends as aforesaid."
52

Rollo (G.R. No. 157360), Vol. I, p. 339-355. Adopted on 21 November 1995 and approved on 18 February 1997.

53

The other rights, limitations and preferences of common capital stock are as follows:

1. After the requirements with respect to preferential dividends on the Serial Preferred Stock shall have been met and after the corporation shall have
complied with all the requirements, if any, with respect to the setting aside of sums as purchase, retirement or sinking funds, then and not otherwise the
holders of the Common Capital Stock shall be entitled to receive such dividends as may be declared from time to time by the Board of Directors out of
funds legally available therefor.

89

2. After distribution in full of the preferential amounts to be distributed to the holders of Serial Preferred Stock in the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding up of the corporation, the holders of the Common Capital Stock shall be entitled to receive all the
remaining assets of the corporation of whatever kind available for distribution to stockholders ratably in proportion to the number of shares of the
Common Capital Stock held by them, respectively.
xxxx
4. The ownership of shares of Common Capital Stock shall not entitle the owner thereof to any right (other than such right, if any, as the Board of
Directors in its discretion may from time to time grant) to subscribe for or to purchase or to have offered to him for subscription or purchase any shares of
any class of preferred stock of the corporation.
54

http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.10%29_final.pdf

55

http://www.sec.gov.ph/index.htm?GIS_Download

56

http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_%28as%20of %207.2.10%29_final.pdf

57

http://www.pldt.com.ph/investor/Documents/2009%20Dividend%20Declarations_Update %2012082009.pdf. See


also http://www.pldt.com.ph/investor/Documents/disclosures_03-01- 2011.pdf
58

Subscription Investment Plan. See PD No. 217.

59

This is the result of the preferred shares being denominated 10% preferred, which means each preferred share will earn an annual dividend equal to
10% of its par value of P10, which amounts to P1. Once this dividend is paid to holders of preferred shares, the rest of the retained earnings can be paid
as
dividends
to
the
holders
of
common
shares.
Seehttp://www.pldt.com.ph/investor/Documents/2009%20Dividend
%20Declarations_Update %2012082009.pdf
In 2011, PLDT declared dividends for the common shares at P78.00 per share. (http://www.pldt.com.ph/investor/Documents/disclosures_03-01-2011.pdf)
60

http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_(as%20of %207.2.10)_final.pdf

61

Id. Based on PLDTs 2010 GIS, the paid-up capital of PLDT (as of Record Date 12 April 2010) consists of the following:

Filipino (preferred): 403,410,355


Foreigners (preferred): 2,287,207
Total: 405,697,562
62

Based on par value, as stated in PLDTs 2010 GIS sbumitted to the SEC. See http://www.pldt.com.ph/investor/shareholder/Documents/GIS_2010_
%28as%20of
%207.2.10%29_final.pdf (accessed 23 May 2011).
Authorized capital stock of PLDT is broken down as follows:
Common shares: 234,000,000
Preferred shares: 822,500,000
Total: 1,056,000,000
63

For the year 2009.

64

http://www.pse.com.ph/ (accessed 31 May 2011)

65

http://www.pse.com.ph/html/Quotations/2011/stockQuotes_05272011.pdf (accessed 27 May 2011)

66

335 Phil. 82 (1997).

67

Krivenko v. Register of Deeds, 79 Phil. 461 (1947); Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953);Vasquez v. Li Seng Giap, 96 Phil. 447
(1955); Soriano v. Ong Hoo, 103 Phil. 829 (1958); Philippine Banking Corporation v. Lui She, 128 Phil. 53 (1967); Frenzel v. Catito, 453 Phil. 885 (2003).

90

68

Id.

69

Securities and Exchange Commission v. Court of Appeals, et al., 316 Phil. 903 (1995). The Court ruled in this case:

The Securities and Exchange Commission ("SEC") has both regulatory and adjudicative functions.
Under its regulatory responsibilities, the SEC may pass upon applications for, or may suspend or revoke (after due notice and hearing),
certificates of registration of corporations, partnerships and associations (excluding cooperatives, homeowners associations, and labor unions);
compel legal and regulatory compliances; conduct inspections; and impose fines or other penalties for violations of the Revised Securities Act, as well as
implementing rules and directives of the SEC, such as may be warranted.
Relative to its adjudicative authority, the SEC has original and exclusive jurisdiction to hear and decide controversies and cases involving a. Intra-corporate and partnership relations between or among the corporation, officers and stockholders and partners, including their elections or
appointments;
b. State and corporate affairs in relation to the legal existence of corporations, partnerships and associations or to their franchise; and
c. Investors and corporate affairs particularly in respect of devices and schemes, such as fraudulent practices, employed by directors, officers, business
associates, and/or other stockholders, partners, or members of registered firms; x x x
x x x x (Emphasis supplied)
70

SEC. 17. Grounds when articles of incorporation or amendment may be rejected or disapproved. The Securities and Exchange Commission may
reject the articles of incorporation or disapprove any amendment thereto if the same is not in compliance with the requirements of this Code:
Provided, That the Commission shall give the incorporators a reasonable time within which to correct or modify the objectionable portions of
the articles or amendment. The following are grounds for such rejection or disapproval:
xxx
(4) That the required percentage of ownership of the capital stock to be owned by citizens of the Philippines has not been complied with as
required by existing laws or the Constitution. (Emphasis supplied)
71

Republic Act No. 8799. Section 5 of R.A. No. 8799 provides:

Section 5. Powers and Functions of the Commission. 5.1. The Commission shall act with transparency and shall have the powers and functions
provided by this Code, Presidential Decree No. 902-A, the Corporation Code, the Investment Houses Law, the Financing Company Act and other
existing laws. Pursuant thereto the Commission shall have, among others, the following powers and functions:
(a) Have jurisdiction and supervision over all corporations, partnerships or associations who are the grantees of primary franchises and/or a license or a
permit issued by the Government;
xxx
(c) Approve, reject, suspend, revoke or require amendments to registration statements, and registration and licensing applications;
xxx
(f) Impose sanctions for the violation of laws and the rules, regulations and orders, issued pursuant thereto;
xxx
(i) Issue cease and desist orders to prevent fraud or injury to the investing public;
xxx
(m) Suspend, or revoke, after proper notice and hearing the franchise or certificate of registration of corporations, partnership or associations, upon any
of the grounds provided by law; and
(n) Exercise such other powers as may be provided by law as well as those which may be implied from, or which are necessary or incidental to the
carrying out of, the express powers granted the Commission to achieve the objectives and purposes of these laws.

The Lawphil Project - Arellano Law Foundation

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SEPARATE DISSENTING OPINION


VELASCO, JR., J.:
With due respect, I dissent.
A summary of the pertinent facts is as follows:
Philippine Long Distance Telephone Company (PLDT), a Philippine-registered telecommunications firm, was granted an initial 50-year charter and the
right to establish a telephone network by Act No. 3436 on November 28, 1928.1
In 1969, American-owned General Telephone and Electronics Corporation (GTE), a major shareholder of PLDT, sold 26% of PLDTs equity to Philippine
Telecommunications Investment Corporation (PTIC).2 PTIC was incorporated on November 9, 1967 and is engaged in the business of investment
holdings. It held 26,034,263 of PLDT shares, or 13.847% of the total outstanding common stocks of PLDT.3
In 1977, Prime Holdings Inc. (PHI) was incorporated and 100% owned by the Conjuangco group. Subsequently, PHI became the owner of 111,415
shares or 46.125% of PTIC by virtue of three (3) Deeds of Assignment executed by Ramon Cojuangco and Luis Tirso Rivilla. 4
On May 9, 1986, the 111,415 PTIC shares held by PHI were sequestered by the Presidential Commission on Good Government (PCGG) pursuant to
Executive Order No. 1.5 Later, this Court declared the said shares to be owned by the Republic of the Philippines.6
In 1999, First Pacific Company Limited (First Pacific), a Bermuda-registered, Hong Kong-based investment firm, acquired the remaining 54% equity of
PTIC.7
Thereafter, the government decided to sell its 46.1% stake in PTIC (equivalent to 6.4% indirect stake in PLDT), designating the Privatization Council of
the Philippine Government as the disposition entity. On December 8, 2006, a public bidding was held where Singapore-based Parallax Capital
Management LP (Parallax) emerged as the highest bidder with an offer of PhP 25,217,556,000.8
On January 31, 2007, the House of Representatives Committee on Good Government conducted a public hearing on the particulars of the impending
sale. Finance Secretary Margarito Teves, Finance Undersecretary John Sevilla, PCGG Chairperson Camilo Sabio, Commissioners Narciso Nario and
Nick Conti, Securities and Exchange Commission (SEC) General Counsel Vernette Umali-Paco, Philippine Stock Exchange (PSE) Chairperson Jose
Vitug and President Francisco Ed Lim, Development Bank of the Philippines (DBP) President Reynaldo David and Director Miguel Romero all attended
the hearing.9
In Report No. 2270, the House Committee on Good Government concluded that: (1) the auction of the governments PTIC shares bore due diligence,
transparency and conformity with existing legal procedures; and (2) First Pacifics intended acquisition of the governments PTIC shares resulting in its
100% ownership in PTIC will not violate the 40% constitutional limit on foreign ownership of a public utility since PTIC held only 13.847% of the total
outstanding common stocks of PLDT.10
Subsequently, the government informed First Pacific of the results of the bidding and gave it until February 1, 2007 to exercise its right of first refusal as
provided under PTICs Articles of Incorporation. Consequently, First Pacific announced that it would match Parallaxs bid. 11 However, First Pacific failed
to raise the money for the purchase by the February 1, 2007 deadline and, instead, yielded the right to PTIC itself. The deadline was then reset to March
2, 2007.12
On February 14, 2007, First Pacific, through its subsidiary, Metro Pacific Assets Holdings Inc. (MPAH), entered into a Conditional Sale and Purchase
Agreement with the government for the latters 46.1% stake in PTIC at the price of PhP 25,217,556,000. 13 The acquisition was completed on February
28, 2007.
On the same date, Wilson Gamboa (Gamboa) filed the instant petition for prohibition, injunction, declaratory relief and declaration of nullity of sale of the
111,415 shares of PTIC. He argues that: (1) the consummation of the impending sale of 111,415 shares to First Pacific violates the constitutional
limitation on foreign ownership of a public utility; (2) respondents committed grave abuse of discretion by allowing the sale of PTIC shares to First
Pacific; (3) respondents have made a complete misrepresentation of the impending sale by saying that it does not breach the constitutional limitation on
foreign ownership of a public utility; and (4) the sale of common shares to foreigners in excess of 40% of the entire subscribed common capital stock
violates the 1987 Philippine Constitution.14
After a careful examination of the facts and law applicable to the case, I submit that the petition should be dismissed.
At the outset, it is strikingly clear that the petition suffers from several jurisdictional and procedural defects.
Petitioner Has No Locus Standi
Petitioner Gamboa claims that he filed the petition in his capacity as a "nominal shareholder of PLDT and as [a] taxpayer." 15 However, these claims do
not clothe him with the requisite legal standing to bring this suit.

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The Rules of Court specifically requires that "[e]very action must be prosecuted or defended in the name of the real party in interest." 16 A real party in
interest is defined as the "party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit."
Petitioner has failed to allege any interest in the 111,415 PTIC shares nor in any of the previous purchase contracts he now seeks to annul. He is neither
a shareholder of PTIC nor of First Pacific. Also, he has not alleged that he was an interested bidder in the governments auction sale of the PTIC shares.
Finally, he has not shown how, as a nominal shareholder of PLDT, he stands to benefit from the annulment of the sale of the 111,415 PTIC shares or of
any of the sales of the PLDT common shares held by foreigners. In fine, petitioner has not shown any real interest substantial enough to give him the
requisite locus standi to question the sale of the governments PTIC shares to First Pacific.
Likewise, petitioners assertion that he has standing to bring the suit as a "taxpayer" must fail. In Gonzales v. Narvasa, We discussed that "a taxpayer is
deemed to have the standing to raise a constitutional issue when it is established that public funds have been disbursed in alleged contravention of the
law or the Constitution." 17 In this case, no public funds have been disbursed. In fact, the opposite has happenedthere is an inflow of funds into the
government coffers.
Evidently, petitioner Gamboa has no legal standing to bring the present petition before this Court.
This Court Has No Jurisdiction
Petitioner Gamboa filed four (4) different petitions before this Courtdeclaratory relief, annulment, prohibition and injunction. However, all of these
actions are not within the exclusive and/or original jurisdiction of the Supreme Court.
Article VII of the 1987 Constitution, particularly Section 5(1), in relation to Sec. 5(5), enumerates the instances where this Court exercises original
jurisdiction:
Article VIII
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to
the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
Accordingly, this Court promulgated the Rules of Court, Sec. 1, Rule 56 of which states:
RULE
Original Cases

56

Section 1. Original cases cognizable. Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings
against members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed originally in the
Supreme Court.
Based on the foregoing provisos, it is patently clear that petitions for declaratory relief, annulment of sale and injunction do not fall within the exclusive
original jurisdiction of this Court.
First, the court with the proper jurisdiction for declaratory relief is the Regional Trial Court (RTC). Sec. 1, Rule 63 of the Rules of Court stresses that an
action for declaratory relief is within the exclusive original jurisdiction of the RTC, viz:
Any person interested under a deed, will, contract or other written instrument, 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. (Emphasis supplied.)
An action for declaratory relief also requires the following: (1) a justiciable controversy between persons whose interests are adverse; (2) the party
seeking the relief has a legal interest in the controversy; and (3) the issue is ripe for judicial determination. 18 As previously discussed, petitioner lacks any
real interest in this action; thus, no justiciable controversy between adverse interests exists.
Further, the Rules of Court also requires that "[a]ll persons who have or claim any interest which would be affected by the declaration shall be made
parties."19 The failure to implead all persons with a claim or interest in the subject matter of the petition for declaratory relief is a jurisdictional defect. 20
What is more, an action for declaratory relief requires that it be filed before "the breach or violation of the statute, deed, contract, etc. to which it refers.
Where the law or contract has already been contravened prior to the filing of an action for declaratory relief, the court can no longer assume jurisdiction

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over the action."21 Here, petitioner himself points out the fact that, using the common stockholding basis, the 40% maximum foreign ownership limit on
PLDT was already violated long before the sale of the PTIC shares by the government. 22 In addition, the sale itself has already been consummated. This
only means that an action for declaratory relief is no longer proper.
Despite this, the ponencia decided to treat the petition for declaratory relief as one for mandamus, citing the rule that "where the petition has far-reaching
implications and raises questions that should be resolved, it may be treated as one for mandamus." 23 However, such rule is not absolute. In Macasiano
v. National Housing Authority,24 the Court explicitly stated that the exercise of such discretion, whether to treat a petition for declaratory relief as one for
mandamus, presupposes that the petition is otherwise viable or meritorious. As I shall discuss subsequently in the substantive portion of this opinion, the
petition in this case is clearly not viable or meritorious.
Moreover, one of the reasons pointed out by the Court in Macasiono when it refused to treat the petition for declaratory relief as one for mandamus was
that the petitioner lacked the proper standing to file the petition. Thus, the petition was subsequently dismissed. This is exactly similar to the instant case.
As previously explained, petitioner has no legal standing to bring the present petition before this Court. He failed to show any real interest in the case
substantial enough to give him the required legal standing to question the sale of the PTIC shares of the government to First Pacific.
Further, a petition for mandamus is premature if there are administrative remedies available to petitioner.25Under the doctrine of primary administrative
jurisdiction, "courts cannot or will not determine a controversy where the issues for resolution demand the exercise of sound administrative discretion
requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact. In other
words, if a case is such that its determination requires the expertise, specialized training and knowledge of an administrative body, relief must first be
obtained in an administrative proceeding before resort to the courts is had even if the matter may well be within their proper jurisdiction." 26 Along with
this, the doctrine of exhaustion of administrative remedies also requires that where an administrative remedy is provided by statute relief must be sought
by exhausting this remedy before the courts will act.27
In the instant case, the power and authority to determine compliance with the Constitution lies with the SEC. Under Section 17(4) of the Corporation
Code, the SEC has the power to approve or reject the Articles of Incorporation of any corporation where "the required percentage of ownership of the
capital stock to be owned by citizens of the Philippines has not been complied with as required by existing laws or the Constitution." Similarly, under
Section 5 of the Securities Regulation Code, the SEC is conferred with the power to suspend or revoke the franchise or certificate of registration of
corporations upon any of the grounds provided by law.28 It bears stressing that the SEC also has the power to investigate violations of the Securities
Regulation Code and its Amended Rules. With this, it is clear that petitioner failed to invoke the primary jurisdiction of the SEC with respect to this matter.
Additionally, the petition contains numerous questions of fact which is not allowed in a petition for mandamus. 29Hence, based on the foregoing, a petition
for mandamus is evidently improper.
Second, since an action for annulment of sale is an ordinary civil action incapable of pecuniary estimation, 30 it also falls within the exclusive original
jurisdiction of the RTC.31
Lastly, although this Court, the CA, and the RTC have "concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum." 32 The doctrine of hierarchy of courts
dictates that when jurisdiction is shared concurrently with different courts, the proper suit should first be filed with the lower-ranking court. Failure to do
so is sufficient cause for the dismissal of a petition.33
In Santiago v. Vasquez,34 the Court took the opportunity to explain why the blatant disregard of the hierarchy of courts is frowned upon, to wit:
x x x We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants
who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that
the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This
practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay,
intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules
of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court
will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.
In the instant case, petitioner should have filed the petition for injunction and prohibition with the trial courts. Petitioner failed to show any exceptional or
compelling circumstance to justify the exception to the rule of hierarchy of courts. Thus, absent such justification, the rule must be upheld.
In fact, in Fernandez v. Cojuangco, 35 which also involved a similar issue, questioning the issuance of PLDTs common shares to Smart and NTTs
stockholders on the ground, among others, that such issuance of shares violated the 40% foreign ownership constitutional restriction for public utilities,
this Court issued a Resolution dismissing the petition filed with it for disregarding the hierarchy of courts.
More importantly, the function of a writ of prohibition is to prevent the performance of an act which is yet to be done. It is not intended to provide a
remedy for acts already performed.36 The rationale behind this was discussed in Cabanero v. Torres,37 citing U.S. v. Hoffman,38 viz:
The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggested to
the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require
an affirmative act; and the only effect to a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction.
As previously pointed out, the sale by the government of the PTIC shares had already been completed. Thus, the Petition for Prohibition has become
moot. As a result, this Court has no obligation to entertain the petition.

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Finally, it should be noted that the non-joinder of ordinary civil actions with special civil actions is elementary in remedial law. Sec. 5, Rule 2 of the Rules
specifically prohibits the joining of special civil actions or actions governed by special rules with ordinary civil actions. 39 In this case, petitioner violated
this basic rule when he joined several special civil actions, prohibition and declaratory relief, and the ordinary civil actions for annulment and injunction.
Violation of Due Process
It is a fundamental guarantee in the Constitution that "[n]o person shall be deprived of life, liberty or property without due process of law." 40 Due process
has two aspects: substantive and procedural. Substantive due process is a prohibition of arbitrary laws, while procedural due process is a guarantee of
procedural fairness.41Here, what petitioner asks of this Court is a finding of a violation of both substantive and procedural due process.
Sec. 11, Art. XII of the Constitution contemplates of two situations: first, where the applicant of a franchise is a natural person, he must be a Filipino
citizen; and second, where the applicant is a juridical person, 60% of its capital must be owned by Filipino citizens. In the first scenario, only one person
and one property is involved, i.e., the Filipino citizen and his or her franchise. In the second, two different property holders and two different properties
are involved, i.e., the public utility company holding its franchise and the shareholders owning the capital of the utility company. However, in both
situations, Sec. 11 imposes a qualification for the retention of property on just one property holder, the franchise holder, as a condition for keeping his or
its franchise. It imposes no nationality qualification on the shareholders of the utility company as a condition for keeping their shares in the utility
company. Thus, if a utility company or the franchise holder fails to maintain the nationality qualification, only its franchise should be revoked.
In J.G. Summit Holdings, Inc. v. CA, 42 this Court had the chance to rule on a similar set of facts. In that case, We refused to annul the sale of the
governments shares despite the petitioners claim that it would breach the maximum 40% foreign ownership limit found in the Constitution. According to
the Court:
x x x In fact, it can even be said that if the foreign shareholdings of a landholding corporation exceeds 40%, it is not the foreign stockholders ownership
of the shares which is adversely affected but the capacity of the corporation to own land that is, the corporation becomes disqualified to own land. This
finds support under the basic corporate law principle that the corporation and its stockholders are separate juridical entities. In this vein, the right of first
refusal over shares pertains to the shareholders whereas the capacity to own land pertains to the corporation. Hence, the fact that PHILSECO owns land
cannot deprive stockholders of their right of first refusal. No law disqualifies a person from purchasing shares in a landholding corporation even if the
latter will exceed the allowed foreign equity, what the law disqualifies is the corporation from owning land. (Emphasis supplied.)
Certainly, the Court has differentiated the two property owners and their properties. Confusing the two would result in "an unreasonable curtailment of
property rights without due process of law."43
Furthermore, procedural due process requires that before any of the common shares in excess of the 40% maximum foreign ownership limit can be
taken, all the shareholders have to be given notice and a trial should be held before their shares are taken. This means that petitioner should have
impleaded all the foreign natural and juridical shareholders of PLDT so that they can be heard. The foreign shareholders are considered as an
"indispensable party" or one who:
has such an interest in the controversy or subject matter that a final adjudication cannot be made, in his absence, without injuring or affecting that
interest[;] a party who has not only an interest in the subject matter of the controversy, but also has an interest of such nature that a final decree cannot
be made without affecting his interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity
and good conscience. It has also been considered that an indispensable party is a person in whose absence there cannot be a determination between
the parties already before the court which is effective, complete, or equitable. Further, an indispensable party is one who must be included in an action
before it may properly go forward.44
At the same time, the Rules of Court explicitly requires the joinder of indispensable parties or "[p]arties in interest without whom no final determination
can be had."45 This is mandatory. As held in Pepsico, Inc. v. Emerald Pizza, Inc., 46 their absence renders all actions of the court null and void, viz:
x x x x Their presence is necessary to vest the court with jurisdiction, which is "the authority to hear and determine a cause, the right to act in a case."
Thus, without their presence to a suit or proceeding, judgment of a court cannot attain real finality. The absence of an indispensable party renders all
subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. (Emphasis
supplied.)
In this case, petitioner failed to implead all the indispensable parties. Accordingly, in the absence of such indispensable parties, this Court is wanting in
authority to act or rule on the present petition.
Ultimately, the present petition partakes of a collateral attack on PLDTs franchise as a public utility with petitioner pleading as ground PLDTs alleged
breach of the 40% limit on foreign equity. Such is not allowed. As discussed in PLDT v. National Telecommunications Commission, 47 a franchise is a
property right that can only be questioned in a direct proceeding:
x x x A franchise is a property right and cannot be revoked or forfeited without due process of law. The determination of the right to the exercise of a
franchise, or whether the right to enjoy such privilege has been forfeited by non-user, is more properly the subject of the prerogative writ of quo warranto,
the right to assert which, as a rule, belongs to the State "upon complaint or otherwise" x x x the reason being that the abuse of a franchise is a public
wrong and not a private injury. A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the State because a
franchise is granted by law and its unlawful exercise is primarily a concern of Government.
Hence, due process requires that for the revocation of franchise a petition for quo warranto be filed directly attacking the franchise itself.

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Evidently, the petition is patently flawed and the petitioner availed himself of the wrong remedies. These jurisdictional and procedural grounds, by
themselves, are ample enough to warrant the dismissal of the petition. Granting arguendo that the petition is sufficient in substance and form, it will still
suffer the same fate.
The Proper Definition of "Capital"
Petitioners main substantive issue revolves around the proper definition of the word "capital" found in Section 11, Article 12 of the Constitution. The said
section reads:
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such
citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common
good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of
such corporation or association must be citizens of the Philippines. (Emphasis supplied.)
He argues that the framers of the Constitution intended the word "capital" to be limited to voting shares alone and not the total outstanding capital stock
(combined total of voting and non-voting shares). Specifically, he contends that the term "capital" refers only to shares of stock that can vote in the
election of the members of the Board of Directors. The question is, is this the proper definition?
The ponencia resolved this in the affirmative and held that the term "capital" only refers to voting shares since these are the shares that "have voting
rights which translate to control" 48, i.e., the right to elect directors who ultimately control or manage the corporation. Generally, these are referred to as
"common" shares. However, he clarified that if preferred shares also have the right to vote in the election of the members of the Board of Directors, then
the term "capital" shall also include such preferred shares. Further, the ponencia maintains that "mere legal title is insufficient to meet the required
Filipino equity," but that "full beneficial ownership of the stocks coupled with appropriate voting rights" is required. 49
I beg to disagree with the ponencias resolution of this issue for the following reasons:
First, contrary to pronouncement of the ponencia, the intent of the framers of the Constitution was not to limit the application of the word "capital" to
voting or common shares alone. In fact, the Records of the Constitutional Commission reveal that even though the UP Law Center proposed the phrase
"voting stock or controlling interest," the framers of the Constitution did not adopt this but instead used the word "capital," viz:
MR. BENGZON. We would also like to indicate that perhaps the better term in order to avoid any conflict or misinterpretations would be the use of the
phrase "capital stock."
MR. NATIVIDAD. Capital stock?
MR. SUAREZ. We will discuss that on the committee level because precisely, there were three criteria that were submitted. One of them is with
reference to the authorized capital stock; the second would be with respect to the voting rights; and the third would be with respect to the management.
And so, again, we would like to inform the members that the Committee is still trying to polish this particular provision. 50
xxxx
MR. FOZ. Mr. Vice-President, in Sections 3 and 9,51 the provision on equity is both 60 percent, but I notice that this is now different from the provision in
the 1973 Constitution in that the basis for the equity provision is voting stock or controlling interest instead of the usual capital percentage as provided for
in the 1973 Constitution. We would like to know what the difference would be between the previous and the proposed provisions regarding equity
interest.
MR. VILLEGAS. Commissioner Suarez will answer that.
MR. SUAREZ. Thank you.
As a matter of fact, this particular portion is still being reviewed by this Committee. In Section 1, Article XIII of the 1935 Constitution, the wording is that
the percentage should be based on the capital which is owned by such citizens. In the proposed draft, this phrase was proposed: "voting stock or
controlling interest." This was a plan submitted by the UP Law Center.
Three days ago, we had an early morning breakfast conference with the members of the UP Law Center and precisely, we were seeking clarification
regarding the difference. We would have three criteria to go by: One would be based on capital, which is capital stock of the corporation, authorized,
subscribed or paid up, as employed under the 1935 and the 1973 Constitution. The idea behind the introduction of the phrase "voting stock or controlling
interest" was precisely to avoid the perpetration of dummies, Filipino dummies of multinationals. It is theoretically possible that a situation may develop
where these multinational interests would not really be only 40 percent but will extend beyond that in the matter of voting because they could enter into
what is known as a voting trust or voting agreement with the rest of the stockholders and, therefore, notwithstanding the fact that on record their capital
extent is only up to 40-percent interest in the corporation, actually, they would be managing and controlling the entire company. That is why the UP Law
Center members suggested that we utilize the words "voting interest" which would preclude multinational control in the matter of voting, independent of
the capital structure of the corporation. And then they also added the phrase "controlling interest" which up to now they have not been able to
successfully define the exact meaning of. x x x And as far as I am concerned, I am not speaking in behalf of the Committee, I would feel more

96

comfortable if we go back to the wording of the 1935 and the 1973 Constitution, that is to say, the 60-40 percentage could be based on the capital stock
of the corporation.
MR. FOZ. I understand that that was the same view of Dean Carale who does not agree with the other on this panel at the UP Law Center regarding the
percentage of the ratio.
MR. Suarez. That is right. Dean Carale shares my sentiment about this matter.
MR. BENGZON. I also share the sentiment of Commissioner Suarez in that respect. So there are already two in the Committee who want to go back to
the wording of the 1935 and the 1973 Constitution.52
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MR. TREAS. Madam President, may I propose an amendment on line 14 of Section 3 by deleting therefrom "whose voting stock and controlling
interest." And in lieu thereof, insert the CAPITAL so the line should read: "associations at least sixty percent of the CAPITAL is owned by such citizens.
MR. VILLEGAS. We accept the amendment.
MR. TREAS. Thank you.
THE PRESIDENT. The amendment of Commissioner Treas on line 14 has been accepted by the Committee.
Is there any objection? (Silence) The Chair hears none; the amendment is approved.53
xxxx
MR. VILLEGAS. Yes, Commissioner Davide has accepted the word "CAPITAL" in place of "voting stock or controlling interest." This is an amendment
already accepted by the Committee.54 x x x x
xxxx
MR. NOLLEDO. Thank you, Madam President.
I would like to propound some questions to the chairman and members of the committee. I have here a copy of the approved provisions on Article on the
National Economy and Patrimony. On page 2, the first two lines are with respect to the Filipino and foreign equity and I said: "At least sixty percent of
whose capital or controlling interest is owned by such citizen."
I notice that this provision was amended by Commissioner Davide by changing "voting stocks" to "CAPITAL," but I still notice that there appears the term
"controlling interest" which seems to refer to associations other than corporations and it is merely 50 percent plus one percent which is less than 60
percent. Besides, the wordings may indicate that the 60 percent may be based not only on capital but also on controlling interest; it could mean 60
percent or 51 percent.
Before I propound the final question, I would like to make a comment in relation to Section 15 since they are related to each other. I notice that in Section
15, there still appears the phrase "voting stock or controlling interest." The term "voting stocks" as the basis of the Filipino equity means that if 60
percent of the voting stocks belong to Filipinos, foreigners may not own more than 40 percent of the capital as long as the 40 percent or the excess
thereof will cover nonvoting stock. This is aside from the fact that under the Corporation Code, even nonvoting shares can vote on certain instances.
Control over investments may cover aspects of management and participation in the fruits of production or exploitation.
So, I hope the committee will consider favorably my recommendation that instead of using "controlling interests," we just use "CAPITAL" uniformly in
cases where foreign equity is permitted by law, because the purpose is really to help the Filipinos in the exploitation of natural resources and in the
operation of public utilities. I know the committee, at its own instance, can make the amendment.
What does the committee say?
MR. VILLEGAS. We completely agree with the Commissioners views. Actually, it was really an oversight. We did decide on the word "CAPITAL." I think
it was the opinion of the majority that the phrase "controlling interest" is ambiguous.
So, we do accept the Commissioners proposal to eliminate the phrase "or controlling interest" in all the provisions that talk about foreign participation.
(Emphasis supplied.)
MR. NOLLEDO. Not only in Section 3, but also with respect to Section 15.
Thank you very much.55

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Undoubtedly, the framers of the Constitution decided to use the word "capital" in all provisions that talk about foreign participation and intentionally left
out the phrase "voting stocks" or "controlling interest." Cassus Omissus Pro Omisso Habendus Esta person, object or thing omitted must have been
omitted intentionally. In this case, the intention of the framers of the Constitution is very clearto omit the phrases "voting stock" and "controlling
interest."
Evidently, the framers of the Constitution were more comfortable with going back to the wording of the 1935 and 1973 Constitutions, which is to use the
60-40 percentage for the basis of the capital stock of the corporation. Additionally, the phrases "voting stock or controlling interest" were also initially
used in Secs. 256 and 10,57 Article XII of the 1987 Constitution. These provisions involve the development of natural resources and certain investments.
However, after much debate, they were also replaced with the word "capital" alone. All of these were very evident in the aforementioned deliberations.
Much more significant is the fact that a comprehensive examination of the constitutional deliberations in their entirety will reveal that the framers of the
Constitution themselves understood that the word capital includes both voting and non-voting shares and still decided to use "capital" alone, to wit:
MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock or controlling interest."
MR. AZCUNA. Hence, without the Davide amendment, the committee report would read: "corporations or associations at least sixty percent of whose
CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital to be owned by citizens?
MR. VILLEGAS. That is right.
xxxx
MR. AZCUNA. Yes, but what I mean is that the control should be with the Filipinos.
MR. BENGZON. Yes, that is understood.
MR. AZCUNA. Yes, because if we just say "sixty percent of whose capital is owned by the Filipinos," the capital may be voting or non-voting.
MR. BENGZON. That is correct.58
xxxx
MR. GARCIA. Thank you very much, Madam President.
I would like to propose the following amendment on Section 3, line 14 on page 2. I propose to change the word "sixty" to SEVENTY-FIVE. So, this will
read: "or it may enter into co-production, joint venture, production sharing agreements with Filipino citizens or corporations or associations at least
SEVENTY-FIVE percent of whose CAPITAL stock or controlling interest is owned by such citizens."
MR. VILLEGAS. This is just a correction. I think Commissioner Azcuna is not insisting on the retention of the phrase "controlling interest," so we will
retain "CAPITAL" to go back really to the 1935 and 1973 formulations.59(Emphasis supplied.)
To emphasize, by using the word "capital," the framers of the Constitution adopted the definition or interpretation that includes all types of shares,
whether voting or non-voting.
The fundamental principle in the construction of constitutional provisions is "to give the intent to the framers of the organic law and the people adopting
it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves." 60 Generally, "in
construing constitutional provisions which are ambiguous or of doubtful meaning, the courts may consider the debates in the constitutional convention as
throwing light on the intent of the framers of the Constitution. It is true that the intent of the convention is not controlling by itself, but as its proceeding
was preliminary to the adoption by the people of the Constitution the understanding of the convention as to what was meant by the terms of the
constitutional provision which was the subject of the deliberation, goes a long way toward explaining the understanding of the people when they ratified
it."61
Second, the ponencia also points to the provisions of the Foreign Investments Act of 1991 (FIA), 62 as a reinforcement of the interpretation of the word
"capital" as only referring to those shares entitled to vote. However, a careful examination of its provisions would reveal otherwise.
Section 3(a) of the FIA, as amended, defines the term "Philippine national" as:
SEC. 3. Definitions. - As used in this Act:

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a. The term "Philippine national" shall mean a citizen of the Philippines; of a domestic partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock outstanding and entitled
to vote is owned and held by citizens of the Philippines; or a corporation organized abroad and registered as doing business in the Philippines under the
Corporation Code of which one hundred percent (100%) of the capital stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of
funds for pension or other employee retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent (60%) of the
fund will accrue to the benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino stockholders own stocks in a Securities and
Exchange Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of both
corporations must be owned and held by citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of
both corporations must be citizens of the Philippines, in order that the corporation, shall be considered a "Philippine national." (Emphasis supplied.)
The ponencia failed to see the fact that the FIA specifically has the phrase "entitled to vote" after the phrase "total outstanding capital stock." Logically,
this means that interpreting the phrase "total outstanding capital stock" alone connotes the inclusion of all types of shares under the term "capital" and
not just those that are entitled to vote. By adding the phrase "entitled to vote," the FIA sought to distinguish between the shares that can vote and those
that cannot. Thus, it is very clear that even the FIA itself supports the definition of the term "capital" as including all types of shares.
As a matter of fact, in the Senate deliberations of the FIA, Senator Angara pointed out that the word "capital," as used in the 1987 Constitution, includes
all types of shares:
Senator Angara. x x x x
Before I leave that point, Mr. President, as we know, the constitutional test is capital. That means, equity investment, not control. Would this control test
then now become an additional requirement to the constitutional requirement?
Senator Paterno. Well, this is an amplification of the constitutional stipulation, Mr. President. It is a definition, by law, of what is contained in the
Constitution.
Senator Angara. No, Mr. President, because the Constitution requires 60 percent of capital. That means, whether voting or nonvoting, 60 percent of that
must belong to Filipinos. Whereas, under this proposed definition, it is only the voting shares that we require to be 60 percent owned.
Senator Paterno. Yes.
Senator Angara. So, my question is: Would this requirement of control be in addition to what the Constitution imposes?
Senator Paterno. No, this would be the definition of what the Constitution requires. We are saying that it is the capital stock outstanding and entitled to
vote. It is the definition of capital as maintained by the Constitution.
Senator Angara. On the contrary, I am saying that the constitutional test is capital, which is distinguished from capital stock entitled to vote. Capital
means equity which can be voting or nonvoting, common or preferred. That is the constitutional test.63 x x x (Emphasis supplied.)
Moreover, it is a well-settled rule of statutory construction that a statute should be construed whenever possible in a manner that will avoid conflict with
the Constitution.64 Where a statute is reasonably susceptible of two constructions, one constitutional and the other unconstitutional, the construction in
favor of its constitutionality should be adopted.
In this case, the FIA should be read in harmony with the Constitution. Since the Constitution only provides for a single requirement for the operation of a
public utility under Sec. 11, i.e., 60% capital must be Filipino-owned, a mere statute cannot add another requirement. Otherwise, such statute may be
considered unconstitutional.
Accordingly, the phrase "entitled to vote" should not be interpreted to be limited to common shares alone or those shares entitled to vote in the election
of members of the Board of Directors. It should also include those deemed non-voting because they also have voting rights. Sec. 6 of the Corporation
Code65 grants voting rights to holders of shares of a corporation on certain key fundamental corporate matters despite being classified as non-voting in
the articles of incorporation. These are:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another corporation or other corporations;
7. Investment of corporate funds in another corporation or business in accordance with this Code; and

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8. Dissolution of the corporation.


Clearly, the shares classified as non-voting are also entitled to vote under these circumstances.
In fact, the FIA did not say "entitled to vote in the management affairs of the corporation" or "entitled to vote in the election of the members of the Board
of Directors." Verily, where the law does not distinguish, neither should We. Hence, the proper interpretation of the phrase "entitled to vote" under the FIA
should be that it applies to all shares, whether classified as voting or non-voting shares. Such construction is in fact in harmony with the fundamental law
of the land.
Stockholders, whether holding voting or non-voting stocks, have all the rights, powers and privileges of ownership over their stocks. This necessarily
includes the right to vote because such is inherent in and incidental to the ownership of corporate stocks, and as such is a property right. 66
Additionally, control is another inherent right of ownership. 67 The circumstances enumerated in Sec. 6 of the Corporation Code clearly evince this. It
gives voting rights to the stocks deemed as non-voting as to fundamental and major corporate changes. Thus, the issue should not only dwell on the
daily management affairs of the corporation but also on the equally important fundamental changes that may need to be voted on. On this, the "nonvoting" shares also exercise control, together with the voting shares.
Consequently, the fact that only holders of common shares can elect a corporations board of directors does not mean that only such holders exercise
control over the corporation. Particularly, the control exercised by the board of directors over the corporation, by virtue of the corporate entity doctrine, is
totally distinct from the corporations stockholders and any power stockholders have over the corporation as owners.
It is settled that when the activity or business of a corporation falls within any of the partly nationalized provisions of the Constitution or a special law, the
"control test" must also be applied to determine the nationality of a corporation on the basis of the nationality of the stockholders who control its equity.
The control test was laid down by the Department of Justice (DOJ) in its Opinion No. 18 dated January 19, 1989. It determines the nationality of a
corporation with alien equity based on the percentage of capital owned by Filipino citizens. It reads:
Shares belonging to corporations or partnerships at least 60% of the capital of which is owned by Filipino citizens shall be considered as Philippine
nationality, but if the percentage of Filipino ownership in the corporation or partnership is less than 60% only the number of shares corresponding to such
percentage shall be counted as of Philippine nationality.68
In a catena of opinions, the SEC, "the government agency tasked with the statutory duty to enforce the nationality requirement prescribed in Section 11,
Article XII of the Constitution on the ownership of public utilities,"69 has consistently applied the control test.70
The FIA likewise adheres to the control test. This intent is evident in the May 21, 1991 deliberations of the Bicameral Conference Committee
(Committees on Economic Affairs of the Senate and House of Representatives), to wit:
CHAIRMAN TEVES. x x x On definition of terms, Ronnie, would you like anything to say here on the definition of terms of Philippine national?
HON. RONALDO B. ZAMORA. I think weve we have already agreed that we are adopting here the control test. Wasnt that the result of the
CHAIRMAN PATERNO. No. I thought that at the last meeting, I have made it clear that the Senate was not able to make a decision for or against the
grandfather rule and the control test, because we had gone into caucus and we had voted but later on the agreement was rebutted and so we had to go
back to adopting the wording in the present law which is not clearly, by its language, a control test formulation.
HON. ANGARA. Well, I dont know. Maybe I was absent, Ting, when that happened but my recollection is that we went into caucus, we debated [the]
pros and cons of the control versus the grandfather rule and by actual vote the control test bloc won. I dont know when subsequent rejection took place,
but anyway even if the we are adopting the present language of the law I think by interpretation, administrative interpretation, while there may be some
differences at the beginning, the current interpretation of this is the control test. It amounts to the control test.
CHAIRMAN TEVES. Thats what I understood, that we could manifest our decision on the control test formula even if we adopt the wordings here by the
Senate version.
xxxx
CHAIRMAN PATERNO. The most we can do is to say that we have explained is to say that although the House Panel wanted to adopt language which
would make clear that the control test is the guiding philosophy in the definition of [a] Philippine national, we explained to them the situation in the
Senate and said that we would be was asked them to adopt the present wording of the law cognizant of the fact that the present administrative
interpretation is the control test interpretation. But, you know, we cannot go beyond that. 71
MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase "voting stock or controlling interest."
This intent is even more apparent in the Implementing Rules and Regulations (IRR) of the FIA. In defining a "Philippine national," Section 1(b) of the IRR
of the FIA categorically states that for the purposes of determining the nationality of a corporation the control test should be applied. 72

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The cardinal rule in the interpretation of laws is to ascertain and give effect to the intention of the legislator. 73Therefore, the legislative intent to apply the
control test in the determination of nationality must be given effect.
Significantly, in applying the control test, the SEC has consistently ruled that the determination of the nationality of the corporation must be based on the
entire outstanding capital stock, which includes both voting and non-voting shares. One such ruling can be found in an Opinion dated November 21,
1989 addressed to Atty. Reynaldo G. Geronimo, to wit:
As to the basis of computation of the 60-40 percentage nationality requirement under existing laws (whether it should be based on the number of shares
or the aggregate amount in pesos of the par value of the shares), the following definitions of corporate terms are worth mentioning.
"The term capital stock signifies the aggregate of the shares actually subscribed". (11 Fletcher, Cyc. Corps. (1971 Rev. Vol.) sec. 5082, citing Goodnow
v. American Writing Paper Co., 73 NJ Eq. 692, 69 A 1014 aff'g 72 NJ Eq. 645, 66 A, 607).
"Capital stock means the capital subscribed (the share capital)". (Ibid., emphasis supplied).
"In its primary sense a share of stock is simply one of the proportionate integers or units, the sum of which constitutes the capital stock of corporation.
(Fletcher, sec. 5083).
The equitable interest of the shareholder in the property of the corporation is represented by the term stock, and the extent of his interest is described by
the term shares. The expression shares of stock when qualified by words indicating number and ownership expresses the extent of the owner's interest
in the corporate property (Ibid, Sec. 5083, emphasis supplied).
Likewise, in all provisions of the Corporation Code the stockholders right to vote and receive dividends is always determined and based on the
"outstanding capital stock", defined as follows:
"SECTION 137. Outstanding capital stock defined. The term "outstanding capital stock" as used in this Code, means the total shares of stock issued
to subscribers or stockholders, whether or not fully or partially paid (as long as there is a binding subscription agreement, except treasury shares."
The computation, therefore, should be based on the total outstanding capital stock, irrespective of the amount of the par value of the shares.
Again in SEC Opinion dated December 22, 2004 addressed to Atty. Priscilla B. Valer, the SEC reiterated the application of the control test to the total
outstanding capital stock irrespective of the amount of the par value of shares, viz:
"Under the control concept, the nationality of the corporation depends on the nationality of the controlling stockholders. In determining the nationality of
a corporation under the control test, the following ruling was adopted by the Commission:
xxxx
Hence, we confirm your view that the test for compliance with the nationality requirement is based on the total outstanding capital stock irrespective of
the amount of the par value of shares.74 (Emphasis supplied.)
More importantly, the SEC defined "capital" as to include both voting and non-voting in the determination of the nationality of a corporation, to wit:
In view of the foregoing, it is opined that the term "capital" denotes the sum total of the shares subscribed and paid by the shareholders, or secured to be
paid, irrespective of their nomenclature to be issued by the corporation in the conduct of its operation. Hence, non-voting preferred shares are
considered in the computation of the 60-40% Filipino-alien equity requirement of certain economic activities under the Constitution. 75 (Emphasis
supplied.)
In fact, the issue in the present case was already answered by the SEC in its Opinion dated February 15, 1988. The opinion was issued as an answer to
the query"Would it be legal for foreigners to own more than 40% of the common shares but not more than 40% of the total outstanding capital stock
which would include both common and non-voting preferred shares?" This is exactly the question in this case. The SEC ruled in the affirmative and
stated:
The pertinent provision of the Philippine Constitution under Article XII, Section 7, reads in part thus:
"No franchise, certificate, or any form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines, or to
corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens. . ." x x x
The issue raised on your letter zeroes in on the meaning of the word "capital" as used in the above constitutional provision.
Anent thereto, please be informed that the term "capital" as applied to corporations, refers to the money, property or means contributed by stockholders
as the form or basis for the business or enterprise for which the corporation was formed and generally implies that such money or property or means
have been contributed in payment for stock issued to the contributors. (United Grocers, Ltd. v. United States F. Supp. 834, cited in 11 Fletcher, Cyc.
Corp., 1986, rev. vol., sec. 5080 at 18). As further ruled by the court, "capital of a corporation is the fund or other property, actually or potentially in its
possession, derived or to be derived from the sale by it of shares of its stock or his exchange by it for property other than money. This fund includes not
only money or other property received by the corporation for shares of stock but all balances of purchase money, or installments, due the corporation for

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shares of stock sold by it, and all unpaid subscriptions for shares." (Williams v. Brownstein, 1F. 2d 470, cited in 11 Fletcher, Cyc. Corp., 1058 rev. vol.,
sec. 5080, p. 21).
The term "capital" is also used synonymously with the words "capital stock", as meaning the amount subscribed and paid-in and upon which the
corporation is to conduct its operation. (11 Fletcher, Cyc. Corp. 1986, rev. vol., sec. 5080 at 15). And, as held by the court in Haggard v. Lexington
Utilities Co., (260 Ky 251, 84 SW 2d 84, cited in 11 Fletcher, Cyc. Corp., 1958 rev. vol., sec. 5079 at 17), "The capital stock of a corporation is the
amount paid-in by its stockholders in money, property or services with which it is to conduct its business, and it is immaterial how the stock is classified,
whether as common or preferred."
The Commission, in a previous opinion, ruled that the term capital denotes the sum total of the shares subscribed and paid by the shareholders or
served to be paid, irrespective of their nomenclature. (Letter to Supreme Technotronics Corporation, dated April 14, 1987).
Hence, your query is answered in the affirmative.76 (Emphasis supplied.)
This opinion was reiterated in another Opinion dated July 16, 1996 addressed to Mr. Mitsuhiro Otsuki:
Relative to the second issue, "In the absence of special provisions the holders of preferred stock in a corporation are in precisely the same position, both
with respect to the corporation itself and with respect to the creditors of the corporation, as the holders of common stock, except only that they are
entitled to receive dividends on their shares, to the extent guaranteed or agreed upon, before any dividends can be paid to the holders of common stock.
x x x. Accordingly, as a general rule, they are considered in the computation of the 60-40% Filipino-alien equity percentage requirement, unless the law
covering the type of business to be undertaken provides otherwise. (Emphasis supplied.)
In Opinion No. 32-03 dated June 2, 2003 addressed to Commissioner Armi Jane R. Borje, the SEC likewise held that the word "capital" as used in Sec.
11, Art. XII of the 1987 Constitution refers to the entire outstanding capital stock, regardless of its share classification, viz:
Please note that Article XII, Section 11 of the Philippine Constitution provides:
"No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens"
The legal capacity of the corporation to acquire franchise, certificate, or authority for the operation of a public utility is regulated by the aforequoted
Constitutional provision, which requires that at least sixty per centum (60%) of the capital of such corporation be owned by citizens of the Philippines.
However, such provision does not qualify whether the required ownership of "capital" shall be that of the voting or non-voting, common or preferred.
Hence, it should be interpreted to refer to the sum total of the outstanding capital stock, irrespective of the nomenclature or classification as common,
preferred, voting or non-voting. (Emphasis supplied.)
In the same way, the SEC has also adopted the same interpretation of the word "capital" to various laws or statutes imposing a minimum on Filipino
ownership. In an Opinion dated November 11, 1988 addressed to Mr. Nito Doria, which involved Executive Order No. 226, otherwise known as the
Omnibus Investments Code of 1987, the SEC stated:
For permitted and permissible investments, the maximum percentage of control allowable to foreign investors is found in Sections 46 and 47 of the
Omnibus Investments Code of 1987, copy enclosed. In relation thereto, "Outstanding capital stock" refers to the total shares issued to subscribers or
stockholders, whether or not fully or partially paid, except treasury shares. (Section 137, Corporation Code of the Philippines), and it is immaterial how
the stock is classified, whether as common or preferred, (SEC Opinions, dated June 13, 1988, April 14, 1987, and February 15, 1988).
Again, in an Opinion dated October 16, 1981 addressed to Atty. Jose A. Baez which involved Republic Act No. 1180, otherwise known as the Retail
Trade Nationalization Law, the SEC opined that the issuance of preferred shares to a foreigner will disqualify the corporation from engaging in retail
trade, because the law provides that "no association, partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines,
shall engage directly or indirectly in the retail business."77 The SEC held:
Your client will lose its character of being one hundred percent (100%) Filipino-owned if said Japanese entity is allowed to subscribe to its preferred
shares. The issuance of shares to an alien will reduce the ownership of Filipino citizens to less than the required percentage based on the outstanding
capital stock of the corporation, regardless of the fact that said shares are non-voting and non-convertible.
Please be advised that under the Retail Trade Nationalization Law (R.A. 1180), "No association, partnership, or corporation the capital of which is not
wholly owned by citizens of the Philippines, shall engage directly or indirectly in the retail business."
Notably, the foregoing Opinion was rendered before the promulgation of the 1987 Constitution. Thus, it must be assumed that the framers of the
Constitution were aware of the administrative interpretation of the word "capital" and that they also adhered to the same interpretation when they readopted it in the 1987 Constitution from the 1935 and 1973 Constitutions. As held in Laxamana v. Baltazar, "[w]here a statute has received a
contemporaneous and practical interpretation and the statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it
ordinarily receives, and is regarded as presumptively the correct interpretation of the law. The rule here is based upon the theory that the legislature is
acquainted with the contemporaneous interpretation of a statute, especially when made by an administrative body or executive officers charged with the
duty of administering or enforcing the law, and therefore impliedly adopts the interpretation upon re-enactment." 78
Without a doubt, the SECs definition of the word "capital" has been consistently applied to include the entire outstanding capital stock of a corporation,
irregardless of whether it is common or preferred or voting or non-voting.

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This contemporaneous construction of the SEC is entitled to great respect and weight especially since it is consistent with the Constitutional
Commissions intention to use the term "capital" as applying to all shares, whether common or preferred. It is well to reiterate the principle of
contemporaneous construction and the reason why it is entitled to great respect, viz:
x x x As far back as In re Allen, (2 Phil. 630) a 1903 decision, Justice McDonough, as ponente, cited this excerpt from the leading American case of
Pennoyer v. McConnaughy, decided in 1891: "The principle that the contemporaneous construction of a statute by the executive officers of the
government, whose duty it is to execute it, is entitled to great respect, and should ordinarily control the construction of the statute by the courts, is so
firmly embedded in our jurisprudence that no authorities need be cited to support it. (Ibid, 640. Pennoyer v. McConnaughly is cited in 140 US 1. The
excerpt is on p. 23 thereof. Cf. Government v. Municipality of Binalonan, 32 Phil, 634 [1915]) There was a paraphrase by Justice Malcolm of such a
pronouncement in Molina v. Rafferty, (37 Phil. 545) a 1918 decision:" Courts will and should respect the contemporaneous construction placed upon a
statute by the executive officers whose duty it is to enforce it, and unless such interpretation is clearly erroneous will ordinarily be controlled thereby.
(Ibid, 555) Since then, such a doctrine has been reiterated in numerous decisions. 79 (Emphasis supplied.)
Similarly, the Corporation Code defines "outstanding capital stock" as the "total shares of stock issued." 80 It does not distinguish between common and
preferred shares. It includes all types of shares.
Since foreigners hold 64.27% of to the total number of PLDTs common shares which are entitled to select the Board of Directors, the ponencia claims
foreigners will elect the majority of the Board of Director in PLDT and, hence, have control over the company.
This is incorrect.
First of all, it has been established that the word "capital" in the phrase "corporation or associations organized under the laws of the Philippines, at least
sixty per centum of whose capital is owned by such citizens" under Sec. 11, Art. XII of the 1987 Constitution means both common or preferred shares or
voting or non-voting shares. This phrase is qualified by the last sentence of Sec. 11, which reads:
x x x x The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital,
and all the executive and managing officers of such corporation or association must be citizens of the Philippines. (Emphasis supplied.)
The aforequoted constitutional provision is unequivocalit limits the participation of the foreign investors in the governing body to their proportionate
share in the capital of the corporation. Participation is "the act of taking part in something." 81 Accordingly, it includes the right to elect or vote for in the
election of the members of the Board of Directors. However, this right to participate in the election is restricted by the first sentence of Sec. 11 such that
their right cannot exceed their proportionate share in the capital, i.e., 40%. In other words, the right of foreign investors to elect the members of the
Board of Directors cannot exceed the voting rights of the 40% of the common shares, even though their ownership of common shares may exceed 40%.
Thus, since they can only vote up to 40% of the common shares of the corporation, they will never be in a position to elect majority of the members of
the Board of Directors. Consequently, control over the membership of the Board of Directors will always be in the hands of Filipino stockholders although
they actually own less than 50% of the common shares.
Let Us apply the foregoing principles to the situation of PLDT. Granting without admitting that foreigners own 64.27% of PLDTs common shares and say
they own 40% of the total number of common and preferred shares, still they can only vote up to 40% of the common shares of PLDT since their
participation in the election of the Board of Directors (the governing body of the corporation) is limited by the 40% ownership of the capital under the first
sentence of Sec. 11, Art. XII of the Constitution. The foreigners can only elect members of the Board of Directors based on their 40% ownership of the
common shares and their directors will only constitute the minority. In no instance can the foreigners obtain the majority seats in the Board of Directors.
Further, the 2010 General Information Sheet (GIS) of PLDT reveals that among the thirteen (13) members of the Board of Directors, only two (2) are
foreigners. It also reveals that the foreign investors only own 13.71% of the capital of PLDT.82
Obviously, the nomination and election committee of PLDT uses the 40% cap on the foreign ownership of the capital which explains why the foreigners
only have two (2) members in the Board of Directors. It is apparent that the 64.27% ownership by foreigners of the common shares cannot be used to
elect the majority of the Board of Directors. The fact that the proportionate share of the foreigners in the capital (voting and non-voting shares or
common and preferred shares) is even less than 40%, then they are only entitled to voting rights equivalent to the said proportionate share in the capital
and in the process elect only a smaller number of directors. This is the reality in the instant case. Hence, the majority control of Filipinos over the
management of PLDT is, at all times, assured.
This intent to limit the participation of the foreign investors in the governing body of the corporation was solidified in Commonwealth Act No. 108,
otherwise known as the Anti-Dummy Law. Sec. 2-A of the aforementioned law, as amended, provides in part:
x x x Provided, finally, that the election of aliens as members of the Board of Directors of governing body of corporations or associations engaging in
partially nationalized activity shall be allowed in proportion to their allowable participation or share in the capital of such entities.
The view that the definition of the word "capital" is limited to common or voting shares alone would certainly have the effect of removing the 60-40%
nationality requirement on the non-voting shares. This would then give rise to a situation wherein foreign interest would not really be limited to only 40%
but may even extend beyond that because foreigners could also own the entire 100% of the preferred or non-voting shares. As a result, Filipinos will no
longer have effective ownership of the corporate assets which may include lands. This is because the actual Filipino equity constitutes only a minority of
the entire outstanding capital stock. Therefore, the company would then be technically owned by foreigners since the actual ownership of at least 60% of
the entire outstanding capital stock would be left to the hands of the foreigners. Allowing this to happen would violate and circumvent the purpose for
which the provision in the Constitution was created.83

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This situation was the subject matter of the Opinion dated December 27, 1995 addressed to Mr. George Lavidia where the SEC opined that for the
computation of the required minimum 60% Filipino ownership in a land owning corporation, both voting and preferred non-voting shares must be
included, to wit:
The [law] does not qualify whether the required ownership of "capital stock" are voting or non-voting. Hence, it should be interpreted to mean the sum
total of the capital stock subscribed, irrespective of their nomenclature and whether or not they are voting or non-voting. The use of the phrase "capital
stock belongs" connotes that in order to comply with the Filipino nationality requirement for land ownership, it is necessary that the criterion of "beneficial
ownership" should be met, not merely the control of the corporation.
To construe the 60-40% equity requirement is merely based on the voting shares, disregarding the preferred non-voting shares, not on the total
outstanding subscribed capital stock, would give rise to a situation where the actual foreign interest would not really be only 40% but may extend beyond
that because they could also own even the entire preferred non-voting shares. In this situation, Filipinos may have the control in the operation of the
corporation by way of voting rights, but have no effective ownership of the corporate assets which include lands, because the actual Filipino equity
constitutes only a minority of the entire outstanding capital stock. Therefore, in essence, the company, although controlled by Filipinos, is beneficially
owned by foreigners since the actual ownership of at least 60% of the entire outstanding capital stocks would be in the hands of foreigners. Allowing this
situation would open the floodgates to circumvention of the intent of the law to make the Filipinos the principal beneficiaries in the ownership of
Philippine alienable lands.
xxxx
Thus, for purpose of "land ownership", non-voting preferred shares should be included in the computation of the statutory 60-40% Filipino-alien equity
requirement. To rule otherwise would result in the emergence of foreign beneficial ownership of land, thereby defeating the purpose of the law. On the
other hand, to view the equity ratio as determined on the basis of the entire outstanding capital stock would be to uphold the unequivocal purpose of the
above-cited law of ensuring Filipino rightful domination of land ownership. (Emphasis supplied.)
Clearly, applying the ponencias definition of the word "capital" will give rise to a greater anomaly because it will result in the foreigners obtaining
beneficial ownership over the corporation, which is contrary to the provisions of the Constitution; whereas interpreting "capital" to include both voting and
non-voting shares will result in giving both legal and beneficial ownership of the corporation to the Filipinos.
In the event that the word "capital" is construed as limited to common or voting shares only, it should not have any retroactive effect. Reliance in good
faith on the opinions issued by the SEC, the regulating body in charged with the duty to enforce the nationality required by the Constitution, should not
prejudice any one, especially not the foreign investors. Giving such interpretation retroactive effect is tantamount to violation of due process and would
impact negatively on the various foreign investments already present in the country. Accordingly, such construction should only be applied prospectively.
In sum, the Constitution requires that 60% of the capital be owned by Filipinos. It further requires that the foreign ownership of capital be limited to 40%,
as well as its participation in the governing body of the public utility corporation be limited to its proportionate share in the capital which cannot exceed
40% thereof. As a result, control over the Board of Directors and full beneficial ownership of 60% of the capital stock of the corporation are secured in
the hands of the Filipinos.
I, therefore, vote to DISMISS the petition.
PRESBITERO J. VELASCO, JR.
Associate Justice

DISSENTING OPINION
ABAD, J.:
In 1928, the legislature enacted Act 3436, granting Philippine Long Distance Telephone Company (PLDT) a franchise to provide telecommunications
services across the country. Forty years later in 1969, General Telephone and Electronics Corporation, an American company and major PLDT
stockholder, sold 26% of PLDTs equity to the Philippine Telecommunications Investment Corporation (PTIC).
Subsequently, PTIC assigned 46% of its equity or 111,415 shares of stock to Prime Holdings, Inc. In 1986, the Presidential Commission on Good
Government sequestered these shares. Eventually, the Court declared these as properties of the Republic of the Philippines.
In 1999, First Pacific, a Bermuda-registered and Hongkong-based investment firm, acquired the remaining 54% of PTICs equity in PLDT.
In 2006, the governments Inter-agency Privatization Council offered to auction the 46% PTIC equity in PLDT that the Court adjudged to the Republic.
Parallax Venture Fund XXVII won with a bid of P25.2 billion or US$510 million. First Pacific announced that it would exercise its right of first refusal and
buy those shares by matching Parallaxs bid. In 2007, First Pacific, through its subsidiary, Metro Pacific Assets Holdings, Inc., entered into a Conditional
Sale and Purchase Agreement with the national government involving the 46% PTIC equity for P25.2 billion or US$510 million.
In this petition for prohibition, injunction, declaratory relief, and declaration of nullity of sale, petitioner Wilson P. Gamboa, a PLDT stockholder, seeks to
annul the sale of the 46% PTIC equity or 111,415 shares of stock to Metro Pacific on the ground that it violates Section 11, Article XII of the 1987
Constitution which limits foreign ownership of a public utility company to 40% of its capital. Gamboa claims that since PTIC is a PLDT stockholder, the

104

sale of the 46% of its equity is actually an indirect sale of 6.3% PLDT equity or 12 million shares of stock. This would increase First Pacifics equity in
PLDT from 30.7% to 37%, and concomitantly increase the common shareholdings of foreigners in PLDT to about 64.27%.
The action presents two primordial issues:
1. Whether or not the Court can hear and decide Gamboas petition for prohibition, injunction, declaratory relief, and declaration of nullity of sale; and
2. Whether or not Metro Pacifics acquisition of 46% of PTICs equity violates the constitutional limit on foreign ownership of the capital of PLDT, a public
utility company, provided under Section 11, Article XII of the 1987 Constitution.
One. The objection to the idea of the Court hearing and deciding Gamboas action seems to have some basis in the rules. Under Section 1, Rule 56 of
the Rules of Court, only the following cases may be filed originally in the Supreme Court:
Sec. 1. Original cases cognizable.Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings against
members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme
Court.
Strictly speaking, Gamboa actions for injunction, declaratory relief, and declaration of nullity of sale are not among the cases that can be initiated before
the Supreme Court. Those actions belong to some other tribunal.
And, although the Court has original jurisdiction in prohibition cases, the Court shares this authority with the Court of Appeals and the Regional Trial
Courts. But this concurrence of jurisdiction does not give the parties absolute and unrestrained freedom of choice on which court the remedy will be
sought. They must observe the hierarchy of courts.1 As a rule, the Supreme Court will not entertain direct resort to it unless the remedy desired cannot
be obtained in other tribunals. Only exceptional and compelling circumstances such as cases of national interest and of serious implications justify direct
resort to the Supreme Court for the extraordinary remedy of writ of certiorari, prohibition, or mandamus. 2
The majority of the Court of course suggests that although Gamboa entitles his actions as ones for injunction, declaratory relief, and declaration of nullity
of sale, what controls the nature of such actions are the allegations of his petition. And a valid special civil action for mandamus can be made out of
those allegations since respondent Secretary of Finance, his undersecretary, and respondent Chairman of the Securities and Exchange Commission are
the officials who appear to have the duty in law to implement the foreign ownership restriction that the Constitution commands. 3
To a certain extent, I agree with the position that the majority of my colleagues takes on this procedural issue. I believe that a case can be made for
giving due course to Gamboas action. Indeed, there are in his actions compelling reasons to relax the doctrine of hierarchy of courts. The need to
address the important question of defining the constitutional limit on foreign ownership of public utilities under Section 11, Article XII of the 1987
Constitution, a bedrock policy adopted by the Filipino people, is certainly a matter of serious national interest. Such policy is intended to develop a selfreliant and independent national economy effectively controlled by Filipino entrepreneurs.
Indeed, as the Court said in Espina v. Zamora, 4 the provisions of Article XII of the 1987 Constitution lay down the ideals of economic nationalism. One of
these is the Filipinization of public utilities under Section 11 which recognizes the very strategic position of public utilities both in the national economy
and for national security.5The participation of foreign capital is encouraged since the establishment and operation of public utilities may require the
investment of substantial capital that Filipino citizens could possibly not afford. But at the same time, the Constitution wants to limit foreign involvement
to prevent them from assuming control of public utilities which may be inimical to national interest. 6
Two. Still, the question is whether it is for the Court to decide in this case the shape and substance of what the Constitution meant when it restricted the
size of foreign ownership of the capital of public utility corporations provided for in Section 11, Article XII of the 1987 Constitution which reads:
Section 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per centum of whose capital is owned by such
citizens; x x x.
Gamboa contends that the constitutional limit on foreign ownership in public utilities should be based on the ownership of common or voting shares
since it is through voting that stockholders are able to have control over a corporation. Preferred or non-voting shares should be excluded from the
reckoning.
But this interpretation, adopted by the majority, places on the Court the authority to define and interpret the meaning of "capital" in section 11. I believe,
however, that such authority should be for Congress to exercise since it partakes of policy making founded on a general principle laid down by the
fundamental law. The capital restriction written in the constitution lacks sufficient details for orderly and meaningful implementation. Indeed, in the
twenty-four years that the provision has been in the Constitution, no concrete step has been taken by any government agency to see to its actual
implementation given the absence of clear legislative guidance on how to go about it.
It has been said that a constitution is a system of fundamental laws for the governance and administration of a nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles
on which the government is founded.7But while some constitutional provisions are self-executing, others are not.
A constitutional provision is self-executing if it fixes the nature and extent of the right conferred and the liability imposed such that they can be
determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.
On the other hand, if the provision needs a supplementary or enabling legislation, it is merely a declaration of policy and principle which is not selfexecuting.8

105

Here, the Constitution simply states that no franchise for the operation of a public utility shall be granted to a corporation organized under Philippine laws
unless at least sixty per centum of its capital is owned by Filipino citizens.
Evidently, the Constitution fails to provide for the meaning of the term "capital," considering that the shares of stock of a corporation vary in kinds. The
usual classification depends on how profits are to be distributed and which stockholders have the right to vote the members of the corporations board of
directors.
The Corporation Code does not offer much help, albeit it only confuses, since it uses the terms "capital," "capital stock," or "outstanding capital stock"
interchangeably. "Capital" refers to the money, property, or means contributed by stockholders in the corporation and generally implies that the same
have been contributed in payment for stock issued to the stockholders. 9 "Capital stock" signifies the amount subscribed and paid-in in money, property or
services.10 "Outstanding capital stock" means the total shares of stock issued to stockholders, whether or not fully or partially paid, except treasury
shares.11
Meanwhile, the Foreign Investments Act of 1991 defines a "Philippine national" as, among others, a corporation organized under the laws of the
Philippines of which at least 60% of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines. 12 This gives the
impression, as Justice Carpio noted, that the term "capital" refers only to controlling interest or shares entitled to vote. 13
On the other hand, government agencies such as the Securities and Exchange Commission, institutions, and corporations (such as the Philippine
National Oil Company-Energy Development Corporation) interpret the term "capital" to include both preferred and common shares. 14
Under this confusing legislative signals, the Court should not leave the matter of compliance with the constitutional limit on foreign ownership in public
utilities, a matter of transcendental importance, to judicial legislation especially since any ruling the Court makes on the matter could have deep
economic repercussions. This is not a concern over which the Court has competence. The 1987 Constitution laid down the general framework for
restricting foreign ownership of public utilities. It is apt for Congress to build up on this framework by defining the meaning of "capital," establishing rules
for the implementation of the State policy, providing sanctions for its violation, and vesting in the appropriate agency the responsibility for carrying out the
purposes of such policy.
Parenthetically, there have been several occasions in the past where Congress provided supplementary or enabling legislation for constitutional
provisions that are not self-executing. To name just some: the Comprehensive Agrarian Reform Law of 1988, 15 the Indigenous Peoples Rights Act of
1997,16 the Local Government Code of 1991, 17 the Anti-Graft and Corrupt Practices Act, 18 the Speedy Trial Act of 1998, 19 the Overseas Absentee Voting
Act of 2003,20 the Party-List System Act,21 the Paternity Leave Act of 1996,22 and the Solo Parents' Welfare Act of 2000.23
Based on the foregoing, I vote to DENY the petition on the ground that the constitutional limit on foreign ownership in public utilities under Section 11,
Article XII of the 1987 Constitution is not a self-executing provision and requires an implementing legislation for its enforcement.
ROBERTO A. ABAD
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-7995

May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected. by Republic Act
No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general

106

This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in
significance. The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that
is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive
nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates,
Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country
and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the
Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are
not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor
of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in
accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for
the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and measures and labor and other
laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of
additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the
proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities
and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by the provisions of Republic
Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other
persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act,
contending that: (1) it denies to alien residents the equal protection of the laws and deprives of their liberty and property without due process of law ; (2)
the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8
of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of the police power of the
State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the Act has only one subject embraced in the title;
(3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not
impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power.
There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a
violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of
the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the
ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty
of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with
clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the
very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival,
and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a
modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of
police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have
transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing
and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or
achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the
limitations thereof. The most important of these are the due process clause and the equal protection clause.
b. Limitations on police power.
The basic limitations of due process and equal protection are found in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal
protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are
admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)

107

c. The, equal protection clause.


The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and
conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between
those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public interest, a public
purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary
or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative
power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the
questions that we ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly
related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the
attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there
can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is
due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist
between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review.
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first place, that the
legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or
of the measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual
liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where
there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override
legitimate policy, and courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were merely a regulation,
as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of
residents, the aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or occupation, as old as
society itself, which from the immemorial has always been open to residents, irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation.
In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is unknown. But as group
life develops and families begin to live in communities producing more than what they consume and needing an infinite number of things they do not
produce, the dealer comes into existence. As villages develop into big communities and specialization in production begins, the dealer's importance is
enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions,
the retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the
easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food and supplies are
ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs, food in all its
increasing forms, and the various little gadgets and things needed for home and daily life. He provides his customers around his store with the rice or
corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn
the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or, a
supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait.
The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he was unknown in
provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the cities and big centers of population. He
even pioneers, in far away nooks where the beginnings of community life appear, ministering to the daily needs of the residents and purchasing their
agricultural produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native retailer. He has shown in
this trade, industry without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and customers are made in his
face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he appears to be harmless and extremely useful.

108

c. Alleged alien control and dominance.


There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position that the alien retailer
holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities and
centers of population he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber,
hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for some national corporations like the
Naric, the Namarco, the Facomas and the Acefa, his control over principal foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and the threat is
imagined; in another, it is charged that the law is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an
element of control; also so many unmanageable factors in the retail business make control virtually impossible. The first argument which brings up an
issue of fact merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature and beyond our
prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional convention year (1935),
when the fear of alien domination and control of the retail trade already filled the minds of our leaders with fears and misgivings, and the year of the
enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by
the alien of the retail trade, as witness the following tables:
Assets

Gross Sales

No.Establishment
s

Pesos

Per
cent
Pesos
Distribution

Per
cent
Distribution

Filipino ..........

106,671

200,323,138

55.82

174,181,924

51.74

Chinese ...........

15,356

118,348,692

32.98

148,813,239

44.21

Others ............

1,646

40,187,090

11.20

13,630,239

4.05

Filipino ..........

111,107

208,658,946

65.05

279,583,333

57.03

Chinese ...........

13,774

106,156,218

33.56

205,701,134

41.96

Others ...........

354

8,761,260

.49

4,927,168

1.01

Filipino ..........

113,631

213,342,264

67.30

467,161,667

60.51

Chinese ..........

12,087

93,155,459

29.38

294,894,227

38.20

Others ..........

422

10,514,675

3.32

9,995,402

1.29

Filipino ..........

113,659

213,451,602

60.89

462,532,901

53.47

Chinese ..........

16,248

125,223,336

35.72

392,414,875

45.36

Others ..........

486

12,056,365

3.39

10,078,364

1.17

Filipino .........

119,352

224,053,620

61.09

466,058,052

53.07

Chinese ..........

17,429

134,325,303

36.60

404,481,384

46.06

Others ..........

347

8,614,025

2.31

7,645,327

87

Year
and
Nationality

Retailers

1941:

1947:

1948:

(Census)

1949:

1951:

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Year
Nationality

Item
Assets
(Pesos)

Gross Sales
(Pesos)

Filipino .............................................

1,878

1,633

Chinese ..............................................

7,707

9,691

Others ...............................................

24,415

8,281

and

Retailer's

1941:

109

1947:

1948:

Filipino .............................................

1,878

2,516

Chinese ...........................................

7,707

14,934

Others ..............................................

24,749

13,919

Filipino .............................................

1,878

4,111

Chinese .............................................

7,707

24,398

Others ..............................................

24,916

23,686

Filipino .............................................

1,878

4,069

Chinese ..............................................

7,707

24,152

Others ..............................................

24,807

20,737

Filipino .............................................

1,877

3,905

Chinese .............................................

7,707

33,207

Others ...............................................

24,824

22,033

(Census)

1949:

1951:

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948 Census, issued by the
Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include mere market vendors,
whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased during the years. It is true,
of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the numerical gap through their assests and gross
sales which average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien
invests more capital, buys and sells six to seven times more, and gains much more. The same official report, pointing out to the known predominance of
foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents,
the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention.
It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the enactment of the disputed
nationalization would never have been adopted. The framers of our Constitution also believed in the existence of this alien dominance and control when
they approved a resolution categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the
nationalization of the retail trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was
twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of
Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation
of Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other economic activities of the country"
(Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the constitutional convention for the economic life of the
citizens, in connection with the nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation
should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to wrest
from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and
hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if not the
leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom.
Thus . . . it (the Constitution) envisages an organized movement for the protection of the nation not only against the possibilities of armed
invasion but also against its economic subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and producers believe so; they
fear the dangers coming from alien control, and they express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on
July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second National
Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien predominance and control; so our newspapers, which

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have editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by
official statistics, and felt by all the sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such
predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and
merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles
to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation
of the national economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded. Nationals,
producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be
prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article offers bigger profits
for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a substitute.
Hence, the producers or importers of the prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its consumers, find
the article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have characterized the
exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth
and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and
intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential
foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn
Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods
and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic
deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of
supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful
restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the
land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have
engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of
fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer,
especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here
in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate
the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State
cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country,
the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security.
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial hostility, prejudice or
discrimination, but the expression of the legitimate desire and determination of the people, thru their authorized representatives, to free the nation from
the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public,
nay of the national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence and
security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny the equal protection of the laws? As
pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. The alien resident
owes allegiance to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted by the lure of gain and profit.
His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country
where he temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him
from taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country and
his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people
on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth. He undoubtedly
contributes to general distribution, but the gains and profits he makes are not invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very
important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of commodities and
prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation of which they are mere guests,
which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive and
fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality
were we to hold that no reason or ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.

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The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish sufficient grounds for legislative
classification of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer, that this
is the prerogative of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are
treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature
acted within its legitimate prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection
of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the
classification is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic
Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law sought to be voided as contrary
thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police
laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable
basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it
is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in
question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was
enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any
reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification.
The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided in this jurisdiction as
well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the
Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed
by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the
equal protection clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are
in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the
Philippines does not violate the equal protection of the law and due process or law clauses of the Philippine Bill of Rights. In rendering said decision we
quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous
liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage
American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to its own
subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation
of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to preserve the
Government from fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the
revenue in the trade coastwise, that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class
falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes than for
similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which provided that no one can
obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was held valid, for the following reason: It may
seem wise to the legislature to limit the business of those who are supposed to have regard for the welfare, good order and happiness of the community,
and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose
to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U.
S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses
(pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race and
allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and
that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the
legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at
bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as having tendencies injuring public
interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also
sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that
aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them
for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State Board
of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the
court's findings that the exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing
licenses to person ineligible to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public
interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further added
that the law was the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing
rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which

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imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void because the court found that
there was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained.
It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between aliens and citizens is not
a valid ground for classification. But in this decision the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the
result or product of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L.
ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in any language
other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there
would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be
advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit would be derived
from the operations of the law and on the other hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs.
Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold consent in the operation of laundries both as to persons and place,
was declared invalid, but the court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a
law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act
in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the sympathetic
consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in
so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of the aliens
have been shown on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the language
of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of our laws, customs, and
usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen.
Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of
governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship, are a part of the
government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence
that the Legislature was without plausible reason for making the classification, and therefore appropriate discriminations against aliens as it
relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive.
We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious,
and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . . .
xxx

xxx

xxx

So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt whatever
economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The
courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to
have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a constitutional sense, for
the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restriction it imposes on
rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . .
xxx

xxx

xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the
annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals. . . .

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Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business, is or
is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has a sufficient foundation in
reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to
the health, safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered.
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as essential to the orderly
pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit and penalized.
This arguments overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged in
by petitioner, it has been so engaged by him, by the alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and
without ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the
privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control
of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is the exclusion
in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in
which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary to
bring about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is not necessarily unreasonable because
it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but
actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a
strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to this
Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not really
the masters of our destiny. All aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of
livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to
paralyze all aspects of our national life and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom and liberty are not real
and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is
impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive
as freedom from economic control and domination, thru the exercise of the police power. The fathers of the Constitution must have given to the
legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty. On the
precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the legislation in question is
within the scope of the legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain from approving the
amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly
is authorized to promulgate a law which limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The
Framing of the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principle objective is
the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the Philippines the exploitation, development and
utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the
operation of the public utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade is only a continuance of the
nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures is, therefore, fully
justified. It would have been recreant to its duties towards the country and its people would it view the sorry plight of the nationals with the complacency
and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the repository of the sovereign
power of legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the danger and threat that alien
domination of retail trade poses to national economy.

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d. Provisions of law not unreasonable.


A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective
and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition
of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the
deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now
engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject
to judicial review. It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment.
The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and
though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative
power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we
find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of
competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would
be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the
legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as it conceals the real
purpose of the bill which is to nationalize the retail business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the nature, scope and
consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions
of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of
"nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than either
prohibition or nationalization. Both of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors. (Sweet vs.
City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the tale, the title to regulate
the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in
the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306,
308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection with
the thing to be regulated. While word regulate does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not
have such meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the entire contents of the
law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been
many provisions not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with
the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all other
provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature
and scope of its provisions, and prevent the enactment into law of matters which have received the notice, action and study of the legislators or of the
public. In the case at bar it cannot be claimed that the legislators have been appraised of the nature of the law, especially the nationalization and the
prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection
must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the
Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That
such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners
engaged in domestic trade are adopted.

115

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in
question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But
the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special
rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is
always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict
the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy
posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls
within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law
does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the
exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of
aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives
appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case such matter falls
within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the
provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the
population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on
the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is
stated that the more time should have been given in the law for the liquidation of existing businesses when the time comes for them to close. Our legal
duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and
equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our
power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed by the Congress and duly approved by the
President of the Republic. But the rule does not preclude courts from inquiring and determining whether the Act offends against a provision or provisions
of the Constitution. I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the laws clauses of the
Constitution does not infringe upon them, insofar as it affects associations, partnership or corporations, the capital of which is not wholly owned by the
citizens of the Philippines, and aliens, who are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it
does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the Act and to aliens, who are and have heretofore
been engaged in said business. When they did engage in the retail business there was no prohibition on or against them to engage in it. They assumed
and believed in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business until their death or voluntary
retirement from the business or forfeiture of their license; and corporations, associations or partnership, the capital of which is not wholly owned by the
citizens of the Philippines to continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or until the expiry
of term of the existence of the association or partnership or corporation, whichever event comes first. The prohibition on corporations, the capital of
which is not wholly owned by citizens of the Philippines, to engage in the retail business for a period of more than ten years from the date of the approval
of the Act or beyond the term of their corporate existence, whichever event comes first, is valid and lawful, because the continuance of the existence of
such corporations is subject to whatever the Congress may impose reasonably upon them by subsequent legislation. 1 But the prohibition to engage in
the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of the Philippines, after ten years from the date of
the approval of the Act, even before the end of the term of their existence as agreed upon by the associates and partners, and by alien heirs to whom
the retail business is transmitted by the death of an alien engaged in the business, or by his executor or administrator, amounts to a deprivation of their
property without due process of law. To my mind, the ten-year period from the date of the approval of the Act or until the expiration of the term of the
existence of the association and partnership, whichever event comes first, and the six-month period granted to alien heirs of a deceased alien, his
executor or administrator, to liquidate the business, do not cure the defect of the law, because the effect of the prohibition is to compel them to sell or
dispose of their business. The price obtainable at such forced sale of the business would be inadequate to reimburse and compensate the associates or
partners of the associations or partnership, and the alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The stock
of merchandise bought and sold at retail does not alone constitute the business. The goodwill that the association, partnership and the alien had built up
during a long period of effort, patience and perseverance forms part of such business. The constitutional provisions that no person shall be deprived of
his property without due process of law2 and that no person shall be denied the equal protection of the laws 3 would have no meaning as applied to
associations or partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or dispose of their business
within ten years from the date of the approval of the Act and before the end of the term of the existence of the associations and partnership as agreed
upon by the associations and partners and within six months after the death of their predecessor-in-interest.
The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of private agricultural lands which together with the
lands of the public domain constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and
their heirs of such lands.4

116

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and partnership referred to therein to wind up their
retail business within ten years from the date of the approval of the Act even before the expiry of the term of their existence as agreed upon by the
associates and partners and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his lifetime his executor or
administrator, to liquidate the business, are invalid, for they violate the due process of law and the equal protection of the laws clauses of the
Constitution.

Republic of the Philippines


SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819

April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante,
Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco
& Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco,
Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta
for themselves and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor &
Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho,
Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R. Racho &
Armilyn A. Racho for themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-General,
THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented
by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE
LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato Marcos, Respondents.

117

x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity, ROSEMARIE R.
ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY
MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty. Ricardo M . Ribo, and in his own
behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante
E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development Authority, HON. SUZETTE H. LAZO,
Director-General, Food and Drugs Administration, THE BOARD OF DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD
OF COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D.,
collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE,
CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the Department of Interior and Local Government, Respondents.

118

x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her personal capacity, JOSELYN B.
BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON
CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS
and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGASARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget and Management,Respondents.
DECISION
MENDOZA, J.:

119

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess
his beliefs , and to live as he believes he ought to live, consistent with the liberty of others and with the common good." 1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our people beleaguered in a state of
hunger, illiteracy and unemployment. While governmental policies have been geared towards the revitalization of the economy, the bludgeoning dearth
in social services remains to be a problem that concerns not only the poor, but every member of society. The government continues to tread on a trying
path to the realization of its very purpose, that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and policies that aim to remedy looming societal woes,
while the executive is closed set to fully implement these measures and bring concrete and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on clashing stakeholders
until it is called upon to adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty to interpret
legislation vis-a-vis the most vital and enduring principle that holds Philippine society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and contraception. As in every democratic
society, diametrically opposed views on the subjects and their perceived consequences freely circulate in various media. From television debates 2 to
sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized by members of the clergy 4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has caused a deep division in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act of
2012 (RH Law), was enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition, 5 filed by spouses Attys. James M. Imbong and Lovely Ann C. Imbong, in their personal capacities as
citizens, lawyers and taxpayers and on behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic, privatelyowned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its president, Atty. Maria Concepcion S.
Noche7 and several others8 in their personal capacities as citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition, 10 filed by Serve Life Cagayan De Oro City, Inc., 11 Rosevale Foundation, Inc.,12 a domestic, privatelyowned educational institution, and several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate of the Philippines, 16 in their
capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc., 18 and several others19 in their capacities as
citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition, 22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition, 23 filed by Pro-Life Philippines Foundation Inc. 24 and several others,25 in their capacities as citizens
and taxpayers and on behalf of its associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc., 27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and
Berteni Catalufia Causing, in their capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition, 30 filed by Couples for Christ Foundation, Inc. and several others, 31 in their capacities as citizens
(CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities as citizens and taxpayers (Tillah);
and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer (Alcantara); and

120

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables which are
abortives, in violation of Section 12, Article II of the Constitution which guarantees protection of both the life of the mother and the life of the
unborn from conception.35
The RH Law violates the right to health and the right to protection against hazardous products. The petitioners posit that the RH Law
provides universal access to contraceptives which are hazardous to one's health, as it causes cancer and other health problems. 36
The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the constitutional guarantee respecting
religion as it authorizes the use of public funds for the procurement of contraceptives. For the petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is included in the constitutional mandate ensuring religious freedom. 37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs and convictions. 38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR), 39 provides that skilled health professionals who
are public officers such as, but not limited to, Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of the right to free exercise of religion and the right to free speech. 42
The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to be accredited under the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal prosecution, imprisonment and other forms of punishment. 43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would mean that the majority of the public would no longer be able to avail of the
practitioners services.44
The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates against the poor as it makes them
the primary target of the government program that promotes contraceptive use. The petitioners argue that, rather than promoting reproductive
health among the poor, the RH Law seeks to introduce contraceptives that would effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing the penalty of imprisonment
and/or fine for "any violation," it is vague because it does not define the type of conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from them (the people) the right to manage
their own affairs and to decide what kind of health facility they shall be and what kind of services they shall offer." 47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain a full range of family planning methods is plainly to curtail his
right to expound only his own preferred way of family planning. The petitioners note that although exemption is granted to institutions owned
and operated by religious groups, they are still forced to refer their patients to another healthcare facility willing to perform the service or
procedure.48
The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended that the RH Law providing for
mandatory reproductive health education intrudes upon their constitutional right to raise their children in accordance with their beliefs. 49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of parental authority to determine whether their child
should use contraceptives.50
The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners question the delegation by
Congress to the FDA of the power to determine whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51

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The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the Constitution. 52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous Region of Muslim Mindanao
{ARMM). It is contended that the RH Law, providing for reproductive health measures at the local government level and the ARMM, infringes
upon the powers devolved to LGUs and the ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on the petitions in behalf of the respondents, 55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez, 57 the Filipino Catholic
Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia 60 also filed their respective Comments-inIntervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to intervene. 61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the petitions for the principal reasons that
1] there is no actual case or controversy and, therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and twenty (120) days, or until July 17, 2013. 62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or identify the pertinent issues raised by the
parties and the sequence by which these issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27,
2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered extended until further orders of the Court. 63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the same time posed several questions for
their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of contraceptive drugs and devices. As far
back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices." Although contraceptive drugs and devices were allowed, they could not be sold, dispensed or distributed "unless such sale,
dispensation and distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical practitioner." 65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of abortifacients or anti-conceptional substances
and devices." Under Section 37 thereof, it was provided that "no drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed
physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the population problem should be
considered as the principal element for long-term economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National
Policy on Population, Creating the Commission on Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space or limit family size; mortality and morbidity rates will
be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No. 79, 68 dated December 8, 1972, which,
among others, made "family planning a part of a broad educational program," provided "family planning services as a part of over-all health care," and
made "available all acceptable methods of contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive health. 69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs for women, including family planning and sex education. 71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable pace. From a paltry number of just over
27 million Filipinos in 1960, the population of the country reached over 76 million in the year 2000 and over 92 million in 2010. 72 The executive and the

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legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor
and the marginalized, access and information to the full range of modem family planning methods, and to ensure that its objective to provide for the
peoples' right to reproductive health be achieved. To make it more effective, the RH Law made it mandatory for health providers to provide information
on the full range of modem family planning methods, supplies and services, and for schools to provide reproductive health education. To put teeth to it,
the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on contraception, women's health and
population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to the passage of the RH Law - must be
maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic Act No. 5921 and Republic Act No.
4729, the sale and distribution of contraceptives are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners find
deplorable and repugnant under the RH Law is the role that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to the
barangay officials in the remotest areas of the country - is made to play in the implementation of the contraception program to the fullest extent possible
using taxpayers' money. The State then will be the funder and provider of all forms of family planning methods and the implementer of the program by
ensuring the widespread dissemination of, and universal access to, a full range of family planning methods, devices and supplies. 74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION

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Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a product of a majoritarian democratic process" 75 and "characterized by an
inordinate amount of transparency." 76 The OSG posits that the authority of the Court to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the constitutional policies and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council, 78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the acts of the legislature. 79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law has yet to be enforced and applied to
the petitioners, and that the government has yet to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure. 80
In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our system of government, which obtains not through express provision but by actual
division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction and is supreme within its own
sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the Philippines; 82 (b) the executive power shall be
vested in the President of the Philippines; 83 and (c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes upon the courts proper restraint, born
of the nature of their functions and of their respect for the other branches of government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it to cross the line of separation - but only at a very
limited and specific point - to determine whether the acts of the executive and the legislative branches are null because they were undertaken with grave
abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion results. 89 The Court must demonstrate its unflinching commitment to protect those cherished
rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara, 91 the Court has unequivocally declared that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on applied in Macalintal v. COMELEC, 92 Aldaba v. COMELEC,93Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the application or interpretation of constitutional provision is raised before this Court
(as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the maintenance and enforcement of the
separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95

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Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been adversely affected by its operation. 98 In short, it is
contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. 99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable-definite and concrete, touching on the legal relations of parties having
adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof,
on the other; that is, it must concern a real, tangible and not merely a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 101 A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of 102
In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the constitutionality of an unimplemented
Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet effective does not negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law cannot be challenged "on its face"
as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the First Amendment. 106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. 107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of expression, as they are modes
which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues, 108 it has expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental rights. 109 The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government. 110 Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case
or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental Law has been transgressed, to the
detriment of the Filipino people.
Locus Standi

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The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and applied against them, 111 and the government has yet to distribute reproductive
health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers in establishing the
requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as
a result of the challenged governmental act. 113 It requires a personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. 114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from challenging the constitutionality of the statute grounded on a violation of the rights of third persons
not before the court. This rule is also known as the prohibition against third-party standing. 115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be relaxed for non-traditional plaintiffs
like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres, 117 the Court held that in cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the
right of judicial review. In the first Emergency Powers Cases, 118 ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders although they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge, still, the Court has time and again
acted liberally on the locus s tandi requirement. It has accorded certain individuals standing to sue, not otherwise directly injured or with material interest
affected by a Government act, provided a constitutional issue of transcendental importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been directly injured by the operation of a law or any other
government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in
this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically affects the constitutional provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact that the issues of contraception and reproductive health have already caused
deep division among a broad spectrum of society, the Court entertains no doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication. More importantly, considering that it is the right to life of the mother and the unborn which is primarily at issue, the Court
need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution are being imperilled to be violated. To
do so, when the life of either the mother or her child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the Court has no original
jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of the Constitution, 122 prescribing the
one subject-one title rule. According to them, being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure, 124and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control measure. The corpus of the RH Law
is geared towards the reduction of the country's population. While it claims to save lives and keep our women and children healthy, it also promotes

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pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with
access to information on the full range of modem family planning products and methods. These family planning methods, natural or modem, however,
are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH Law. It is, in fact, the central idea of
the RH Law.126 Indeed, remove the provisions that refer to contraception or are related to it and the RH Law loses its very foundation. 127 As earlier
explained, "the other positive provisions such as skilled birth attendance, maternal care including pre-and post-natal services, prevention and
management of reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women." 128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment language of such precision as
to mirror, fully index or catalogue all the contents and the minute details therein. The rule is sufficiently complied with if the title is comprehensive enough
as to include the general object which the statute seeks to effect, and where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule
"so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and "responsible parenthood" are interrelated
and germane to the overriding objective to control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to
education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act." 129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the attainment of the goal of achieving
"sustainable human development" as stated under its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the public
as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The
Position of the Petitioners

Right

to

Life

The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively sanctions abortion. 130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization and
prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives, intrauterine devices, injectables and other
safe, legal, non-abortifacient and effective family planning products and supplies, medical research shows that contraceptives use results in abortion as
they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents

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For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with the World Health Organization (WHO) and other experts in the medical
field, it is asserted that the Court afford deference and respect to such a determination and pass judgment only when a particular drug or device is later
on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law specifically
provides that only contraceptives that do not prevent the implantation of the fertilized ovum are allowed. 136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the
laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent vintage. From the enactment of R.A. No.
4729, entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules
on contraceptive drugs and devices which prevent fertilization, 138 to the promotion of male vasectomy and tubal ligation, 139 and the ratification of
numerous international agreements, the country has long recognized the need to promote population control through the use of contraceptives in order
to achieve long-term economic development. Through the years, however, the use of contraceptives and other family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health, particularly, reproductive health. 140
This has resulted in the enactment of various measures promoting women's rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine national population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-coercion." 141 As will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection expressly provided to afford protection to life and guarantee religious
freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical issue that should not be decided,
at this stage, without proper hearing and evidence. During the deliberation, however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before conception, there is no unborn to speak
of. For said reason, it is no surprise that the Constitution is mute as to any proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are
waving the view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female ovum by the male sperm. 142 On the
other side of the spectrum are those who assert that conception refers to the "implantation" of the fertilized ovum in the uterus. 143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and ordinary meaning. As held in the recent
case of Chavez v. Judicial Bar Council:144

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One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a well-settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Verba legis non est
recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional provisions are couched express
the objective sought to be attained; and second, because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable zygote; the fertilization that results in a
new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already
has life. No less than the Constitution recognizes the life of the unborn from conception, that the State must protect equally with the life of the mother. If
the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has respect for human life at all stages in the
pregnancy" and "a legitimate and substantial interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited,
as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term "conception" used in Section 12, Article II of
the Constitution. From their deliberations, it clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is human life. x x x. 150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It
begins doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the
continuous process of cell division. All these processes are vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive and human, then, as night follows day,
it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization" was not because of doubt when human
life begins, but rather, because:

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Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific phrase "fertilized ovum" may be
beyond the comprehension of some people; we want to use the simpler phrase "from the moment of conception." 152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without specifying "from the moment of
conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six months after fertilization; and that would really be very, very, dangerous. It is now
determined by science that life begins from the moment of conception. There can be no doubt about it. So we should not give any doubt to Congress,
too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I was going to raise during the period
of interpellations but it has been expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred, the next
process is for the fertilized ovum to travel towards the uterus and to take root. What happens with some contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be unconstitutional and should be
banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain contraceptives are abortifacient. Scientifically
and based on the provision as it is now proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to prohibit Congress from enacting measures that would allow it determine when
life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the courts to decide on based on established evidence. 155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx

xxx

xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine device which actually stops the
egg which has already been fertilized from taking route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.

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Mr. Azcuna: Yes, to the extent that it is after the fertilization.


Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the oral arguments. There it was
conceded that tubal ligation, vasectomy, even condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied Health Dictionary defines conception as
"the beginning of pregnancy usually taken to be the instant a spermatozoon enters an ovum and forms a viable zygote." 159
It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo develops." 160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.

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Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human
being."162
The authors of Human Embryology & Teratology 163 mirror the same position. They wrote: "Although life is a continuous process, fertilization is a critical
landmark because, under ordinary circumstances, a new, genetically distinct human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is formed. The
embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that fertilization is sacred because it is at
this stage that conception, and thus human life, begins. Human lives are sacred from the moment of conception, and that destroying those new lives is
never licit, no matter what the purported good outcome would be. In terms of biology and human embryology, a human being begins immediately at
fertilization and after that, there is no point along the continuous line of human embryogenesis where only a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human being commences at a scientifically
well defined "moment of conception." This conclusion is objective, consistent with the factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos.164
Conclusion:
Fertilization

The

Moment

of

Conception

is

Reckoned

from

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly, following the intention of the Framers of
the Constitution, the undeniable conclusion is that a zygote is a human organism and that the life of a new human being commences at a scientifically
well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at implantation. 165 According to him,
"fertilization and conception are two distinct and successive stages in the reproductive process. They are not identical and synonymous." 166 Citing a letter
of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to the beginning of life but to the viability
of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living human being complete with DNA and 46 chromosomes. 168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To adopt it would constitute textual infidelity not only to the
RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would prevent the implantation of the fetus at
the uterine wall. It would be provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which penalizes the destruction or expulsion of
the fertilized ovum. Thus:

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1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or not to have children; the
number, spacing and timing of their children; to make other decisions concerning reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual health and reproductive health: Provided, however, That reproductive
health rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient
as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using the word " or," the RH Law prohibits
not only drugs or devices that prevent implantation, but also those that induce abortion and those that induce the destruction of a fetus inside the
mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively above, refers to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the mother's womb is an abortifacient (third
kind), the RH Law does not intend to mean at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare either that
protection will only be given upon implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it reaches and implants in
the mother's womb. After all, if life is only recognized and afforded protection from the moment the fertilized ovum implants - there is nothing to prevent
any drug or device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at fertilization, not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained but

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that instance of implantation is not the point of beginning of life. It started earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient" as empty as
it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot be
present in every instance when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's womb
in doses of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb. 172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH
Law and should, therefore, be declared invalid. There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With
such qualification in the RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect is
abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are actually abortifacients because of their failsafe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its declared policy against abortion, the undeniable conclusion is that contraceptives
to be included in the PNDFS and the EDL will not only be those contraceptives that do not have the primary action of causing abortion or the destruction
of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but also those that do not
have the secondary action of acting the same way.

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Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit
only those contraceptives that have the primary effect of being an abortive would effectively "open the floodgates to the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution." 175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the matter, the petitioners posit that the risk of developing breast and cervical cancer is
greatly increased in women who use oral contraceptives as compared to women who never use them. They point out that the risk is decreased when the
use of contraceptives is discontinued. Further, it is contended that the use of combined oral contraceptive pills is associated with a threefold increased
risk of venous thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial infarction. 177 Given the
definition of "reproductive health" and "sexual health" under Sections 4(p) 178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation
only seeks to ensure that women have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere statement of the administration's
principle and policy. Even if it were self-executory, the OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health
of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with provisions protecting and promoting the
right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods,
health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-reliance, and their
integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly express the contrary, the provisions of
the Constitution should be considered self-executory. There is no need for legislation to implement these self-executing provisions. 182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether,
they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and contraceptives per se. 184 In fact, ALFI
prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185

135

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its requirements are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman
that the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards
to ensure the public that only contraceptives that are safe are made available to the public. As aptly explained by respondent Lagman:
D.
dispensed
prescription

Contraceptives
and

cannot
used

be
without

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other Purposes"
are not repealed by the RH Law and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly governed by RA No. 4729 which provides
in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or without consideration,
any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the
prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the purpose of preventing fertilization of the female
ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not more than five hundred pesos or
an imprisonment of not less than six months or more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the consuming public except through a prescription drugstore or hospital
pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or not, is completely unwarranted and baseless. 186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distributio