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away from an
orientations.1
Province of North Cotabato
183591, October 14, 2008
v.
Government,
Islamic
basis
towards
Marxist-Maoist
GR
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process.
While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the
Moro Islamic Liberation Front (MILF), the legal issue involved
has a bearing on all areas in the country where there has
been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do
so in strict adherence to the Constitution, lest its ruling
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to
pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of
their respective peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace
of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim,
it splintered from the Moro National Liberation Front (MNLF)
then headed by Nur Misuari, on the ground, among others, of
what Salamat perceived to be the manipulation of the MNLF
The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing
the same.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the
two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF
Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat
or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to
be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao
del Norte.3 In response, then President Joseph Estrada
declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially
2
responded with deep reservation, but when President Arroyo
asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to
the negotiating table, the MILF convened its Central
Committee to seriously discuss the matter and, eventually,
decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter
suspended all its military actions. 5
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect,
Rehabilitation Aspect, and Ancestral Domain Aspect.
With regard to the Ancestral Domain Aspect, the parties in
Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya,
Malaysia on August 5-7, 2001 which ended with the signing
of the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between
the parties. This was followed by the Implementing
Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj Murad,
who was then the chief peace negotiator of the MILF. Murad's
3
Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and
void.
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from
formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD, 14 to which she
complied.15
Meanwhile, the City of Iligan 16 filed a petition for Injunction
and/or Declaratory Relief, docketed as G.R. No. 183893,
praying that respondents be enjoined from signing the MOAAD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
17
4
(i) insofar as the mandamus aspect is
concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving
the Local Government Units is concerned, if it is
considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the
MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of
the Philippines Peace Panel committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA vis--vis
ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to
information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of
full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under
Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA, the Government of the
Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro
Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not
recognized by law;
the
six
the
the
5
Under the heading "Terms of Reference" (TOR), the MOA-AD
includes not only four earlier agreements between the GRP
and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the
organic act for the Autonomous Region in Muslim Mindanao
(ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and
several international law instruments - the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on
the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of
"compact rights entrenchment emanating from the regime of
dar-ul-mua'hada (or territory under compact) and dar-ul-sulh
(or territory under peace agreement) that partakes the
nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists
tended to see the world through a simple dichotomy: there
was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic
laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world,
however, became more complex through the centuries as the
Islamic world became part of the international community of
nations.
As Muslim States entered into treaties with their neighbors,
even
with
distant
States
and
inter-governmental
organizations, the classical division of the world into dar-ulIslam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-
6
Thus, the concept of "Bangsamoro," as defined in this strand
of the MOA-AD, includes not only "Moros" as traditionally
understood even by Muslims,31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected.
What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro
homeland," the ownership of which is vested exclusively in
the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that
ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the
right to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with
all the elements of a nation-state in the modern sense. 34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others. 35
The MOA-AD goes on to describe the Bangsamoro people as
"the First Nation' with defined territory and with a system of
government having entered into treaties of amity and
commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known
as Indians. In Canada, each of these indigenous peoples is
7
The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its " internal
waters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area; 42 that the BJE shall also have
"territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with
RP) shall exercise joint jurisdiction, authority and
management over all natural resources. 43 Notably, the
jurisdiction over the internal waters is not similarly described
as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and
the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the
Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization
of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries and shall have the option to establish trade
missions in those countries. Such relationships and
understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central
Government is also bound to "take necessary steps to ensure
8
The MOA-AD binds the Parties to invite a multinational thirdparty to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the
"details for the effective enforcement" and "the mechanisms
and modalities for the actual implementation" of the MOAAD. The MOA-AD explicitly provides that the participation of
the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE. 52
The
"associative"
between
the
Central
and the BJE
relationship
Government
9
abstract difference or dispute. There must be a contrariety of
legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence. 57 The Court can decide the
constitutionality of an act or treaty only when a proper case
between opposing parties is submitted for judicial
determination.58
Related to the requirement of an actual case or controversy
is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. 59 For a case to
be considered ripe for adjudication, it is a prerequisite that
something had then been accomplished or performed by
either branch before a court may come into the picture, 60 and
the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action.61 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.62
The Solicitor General argues that there is no justiciable
controversy that is ripe for judicial review in the present
petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus
points subject to further negotiations and legislative
enactments as well as constitutional processes aimed
at attaining a final peaceful agreement. Simply put,
the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and
obligations until the list of operative acts required have
been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this
Honorable Court has no authority to pass upon issues
based on hypothetical or feigned constitutional
problems or interests with no concrete bases.
10
xxxx
7. The Parties agree that mechanisms and modalities
for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually
take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal
framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be
contained
in
the
Comprehensive
Compact. 64
(Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render
the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this
Court held:
x x x [B]y the mere enactment of the questioned law
or the approval of the challenged action, the dispute is
said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough
to awaken judicial duty.
xxxx
By the same token, when an act of the President, who
in our constitutional scheme is a coequal of Congress,
is seriously alleged to have infringed the Constitution
and the laws x x x settling the dispute becomes the
duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United
States Supreme Court held that the challenge to the
11
The present petitions allege that respondents GRP Panel and
PAPP Esperon drafted the terms of the MOA-AD without
consulting the local government units or communities
affected, nor informing them of the proceedings. As will be
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the
MOA-AD violate the Constitution. The MOA-AD provides that
"any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOAAD. This stipulation, in effect, guaranteed to the MILF the
amendment of the Constitution. Such act constitutes another
violation of its authority. Again, these points will be discussed
in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for
Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a
branch of government 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.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 78
12
Intervenors, meanwhile, may be given legal standing upon
showing of facts that satisfy the requirements of the law
authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. MacapagalArroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty
and weight as precedents. 90 The Court's forbearing stance on
locus standi on issues involving constitutional issues has for
its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under
the Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure. 91
In the petitions at bar, petitioners Province of North
Cotabato (G.R. No. 183591) Province of Zamboanga del
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitionersin-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in
view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part,
are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be
13
group for justice and the attainment of peace and prosperity
in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced,
as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest
suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been
rendered moot with the satisfaction of all the reliefs prayed
for by petitioners and the subsequent pronouncement of the
Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the
MOA."92
In lending credence to this policy decision, the Solicitor
General points out that the President had already disbanded
the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the
"moot and academic" principle not being a magical formula
that automatically dissuades courts in resolving a case, it will
decide cases, otherwise moot and academic, if it finds that
(a) there is a grave violation of the Constitution; 95 (b) the
situation is of exceptional character and paramount public
interest is involved;96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the
bench, the bar, and the public; 97 and (d) the case is capable
of repetition yet evading review. 98
Another exclusionary circumstance that may be considered is
where there is a voluntary cessation of the activity
complained of by the defendant or doer. Thus, once a suit is
filed and the doer voluntarily ceases the challenged conduct,
it does not automatically deprive the tribunal of power to
hear and determine the case and does not render the case
14
will not be signed as well as the disbanding of the GRP Panel
not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
country's
territory
and
the
wide-ranging
political
modifications of affected LGUs. The assertion that the MOAAD is subject to further legal enactments including
possible Constitutional amendments more than ever
provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the
public and, in this case, the government and its
negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court
did not "pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico.
Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement
contract for a national broadband network involving a onetime
contractual
relation
between
two
parties-the
government and a private foreign corporation. As the issues
therein involved specific government procurement policies
and standard principles on contracts, the majority opinion in
Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part
of a series of agreements necessary to carry out the
Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the
15
The present petitions all contain prayers for Prohibition over
which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition
as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as
what it had done in a number of landmark cases. 106 There is a
reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to
the same problem in the future as respondents' actions are
capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD
and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved,
one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions,
viz:
1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution
and the laws?
16
"Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x
x x111
In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic
decision-making by giving them a better perspective of the
vital issues confronting the nation 112 so that they may be
able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited
exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present
cases is a matter of public concern 114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered
in the Register of Deeds,116 the need for adequate notice to
the public of the various laws, 117 the civil service eligibility of
a public employee,118 the proper management of GSIS funds
allegedly used to grant loans to public officials, 119 the
recovery of the Marcoses' alleged ill-gotten wealth, 120 and the
identity of party-list nominees,121 among others, are matters
of public concern. Undoubtedly, the MOA-AD subject of
the present cases is of public concern, involving as it
does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information
include steps and negotiations leading to the consummation
of the contract. In not distinguishing as to the executory
17
information on matters of public concern found in the Bill of
Rights. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable
by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people. 127
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this
policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public
ethics immediately but, of course, the implementing
law will have to be enacted by Congress, Mr. Presiding
Officer.128
The following discourse, after Commissioner Hilario Davide,
Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on
this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be selfexecuting, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on
18
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate?
Will
the
government
provide
feedback
mechanisms so that the people can participate
and can react where the existing media facilities
are
not
able
to
provide
full
feedback
mechanisms to the government? I suppose this
will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses take
place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just
make one last sentence?
I think when we talk about the feedback
network, we are not talking about public officials
but also network of private business o[r]
community-based organizations that will be
reacting. As a matter of fact, we will put more
credence or credibility on the private network of
volunteers
and
voluntary
community-based
organizations. So I do not think we are afraid that there
will be another OMA in the making. 132 (Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil
society
to
the
comprehensive
peace
process
by
institutionalizing the people's participation.
19
The PAPP committed grave abuse of discretion when he
failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may,
however, require him to comply with the law and discharge
the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not
much different from superficial conduct toward token
provisos that border on classic lip service. 140 It illustrates a
gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents' invocation of the doctrine of executive
privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3's
explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even
recognizes the exercise of the public's right even
before the GRP makes its official recommendations or before
the government proffers its definite propositions.141 It bear
emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the
people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense
of executive privilege in view of their unqualified disclosure
of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008
20
With
respect
to
the
indigenous
cultural
communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely
affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies. 147
The MOA-AD, an instrument recognizing ancestral domain,
failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,148 which entails, among
other things, the observance of the free and prior informed
consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department
or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the
raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as
one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph
7 on Governance suspends the effectivity of all provisions
requiring changes to the legal framework, such clause is
itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always
to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people
and all government authority emanating from them. 149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no
question that they cannot all be accommodated under the
present Constitution and laws. Respondents have admitted
21
and administrative institutions with defined powers
and functions in the comprehensive compact. A period
of transition shall be established in a comprehensive
peace compact specifying the relationship between
the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been
intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD
- by its inclusion of international law instruments in its TORplaced itself in an international legal context, that concept of
association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of
unequal power voluntarily establish durable links. In
the basic model, one state, the associate,
delegates certain responsibilities to the other,
the principal, while maintaining its international
status as a state. Free associations represent a
middle
ground
between
integration
and
independence. x x x150 (Emphasis and underscoring
supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S. pursuant to
a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties
with the U.S., yet they issue their own travel documents,
which is a mark of their statehood. Their international legal
status as states was confirmed by the UN Security Council
and by their admission to UN membership.
22
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of
the Central Government over external defense. Moreover, the
BJE's right to participate in Philippine official missions bearing
on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies
of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted
by the U.S. government on any foreign affairs matter
affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the
present Constitution
No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an "associative"
relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's
provisions, therefore, already requires for its validity the
powerful
region
23
The defining concept underlying the relationship
between the national government and the BJE being
itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.
The
MOA-AD,
moreover,
would
comply
with
Article
X,
Section
20
the Constitution
not
of
24
understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under
our constitutional system, it is only the President who has
that power. Pimentel v. Executive Secretary155 instructs:
25
MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure.
By paragraph 1 of Territory, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space
above it, embracing the Mindanao-Sulu-Palawan geographic
region."
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions
thereof:
SECTION 52. Delineation Process. - The identification
and delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating
a specific perimeter may be initiated by the NCIP with
the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of
ancestral domain boundaries including census of all
community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing
of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the
community concerned and shall at all times include
genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims
shall include the testimony of elders or community
under oath, and other documents directly or indirectly
histories of
and hunting
26
a perimeter map, complete with technical descriptions,
and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. - A
complete copy of the preliminary census and a report
of investigation, shall be prepared by the Ancestral
Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document,
including a translation in the native language of the
ICCs/IPs concerned shall be posted in a prominent
place therein for at least fifteen (15) days. A copy of
the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a
week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15)
days from date of such publication: Provided, That in
areas where no such newspaper exists, broadcasting in
a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if
both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from
publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is
deemed to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral Domains Office
shall require the submission of additional evidence:
Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or
fraudulent after inspection and verification: Provided,
further, That in case of rejection, the Ancestral
Domains Office shall give the applicant due notice,
copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are
27
Among the conventions referred to are the International
Covenant on Civil and Political Rights 161 and the International
Covenant on Economic, Social and Cultural Rights 162 which
state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-determination, "freely determine
their political status and freely pursue their economic, social,
and cultural development."
The people's right to self-determination should not, however,
be understood as extending to a unilateral right of secession.
A distinction should be made between the right of internal
and external self-determination. REFERENCE RE SECESSION
OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law
establish that the right to self-determination of a
people is normally fulfilled through internal selfdetermination - a people's pursuit of its political,
economic, social and cultural development
within the framework of an existing state. A
right to external self-determination (which in
this case potentially takes the form of the
assertion of a right to unilateral secession)
arises in only the most extreme of cases and,
even
then,
under
carefully
defined
circumstances. x x x
External self-determination can be defined as in
the following statement from the Declaration on
Friendly Relations, supra, as
The
establishment
of
a
sovereign
and
independent State, the free association or
integration with an independent State or the
emergence into any other political status freely
determined by a people constitute modes of
28
of Sweden. The Council, before resolving the question,
appointed an International Committee composed of three
jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be
entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of
national territory is essentially an attribute of
the sovereignty of every State. Positive
International Law does not recognize the right of
national
groups,
as
such,
to
separate
themselves from the State of which they form
part by the simple expression of a wish, any more
than it recognizes the right of other States to claim
such a separation. Generally speaking, the grant
or refusal of the right to a portion of its
population of determining its own political fate
by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of
every State which is definitively constituted. A
dispute between two States concerning such a
question, under normal conditions therefore, bears
upon a question which International Law leaves
entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to
an infringement of sovereign rights of a State and
would involve the risk of creating difficulties and a lack
of stability which would not only be contrary to the
very idea embodied in term "State," but would also
endanger the interests of the international community.
If this right is not possessed by a large or small section
of a nation, neither can it be held by the State to which
the national group wishes to be attached, nor by any
other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland
Islands did not refer to a question which is left by
29
independence or secession from those states under
international law,165 but they do have rights amounting to
what was discussed above as the right to internal selfdetermination.
In a historic development last September 13, 2007, the UN
General Assembly adopted the United Nations Declaration on
the Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four
voting against being Australia, Canada, New Zealand, and
the U.S. The Declaration clearly recognized the right of
indigenous
peoples
to
self-determination,
encompassing the right to autonomy or selfgovernment, to wit:
Article 3
Indigenous peoples have the right to selfdetermination. By virtue of that right they freely
determine their political status and freely pursue their
economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal
and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their economic
30
and social conditions, including, inter alia, in the areas
of education, employment, vocational training and
retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where
appropriate, special measures to ensure continuing
improvement of their economic and social conditions.
Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the
lands, territories and resources which they have
traditionally owned, occupied or otherwise used
or acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and
resources that they possess by reason of traditional
ownership or other traditional occupation or use, as
well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition
shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous
peoples concerned.
Article 30
1. Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a
relevant public interest or otherwise freely agreed with
or requested by the indigenous peoples concerned.
31
peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous
peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of
this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying
customary international law - a question which the Court
need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of
the BJE, the particular rights and powers provided for in the
MOA-AD. Even the more specific provisions of the UN DRIP
are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that
States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes that
it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police
officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of
the State, then surely the protection of rights less significant
to them as such peoples would also be the duty of States.
Nor is there in the UN DRIP an acknowledgement of the right
of indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise
used or acquired.
32
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal
framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected.
While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in
the MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding
the
suspensive
clause,
however,
respondents, by their mere act of incorporating in the MOAAD the provisions thereof regarding the associative
relationship between the BJE and the Central Government,
have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the
principles of the sovereignty and territorial integrity of the
Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a
preparation for independence, or worse, an implicit
acknowledgment of an independent status already
prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section
5(c), which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel
33
of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the
box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be
accommodated within the present legal framework, and
which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be asked
whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
34
x x x [T]he fact remains that a successful political and
governance transition must form the core of any postconflict peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political
environment, even where state-building is undertaken
through technical electoral assistance and institutionor capacity-building, is unlikely to succeed. On
average, more than 50 percent of states emerging
from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitutionmaking process can play an important role in the
political and governance transition. Constitutionmaking after conflict is an opportunity to create a
common vision of the future of a state and a road map
on how to get there. The constitution can be partly a
peace agreement and partly a framework setting up
the rules by which the new democracy will operate. 170
In the same vein, Professor Christine Bell, in her article on the
nature and legal status of peace agreements, observed that
the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing
governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been recognized by
no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions 172 is the
framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between
the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
35
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have
the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as
those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers.
36
Executive may vitiate its character as a genuine "people's
initiative." The only initiative recognized by the Constitution
is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the
people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in
the verification of their petition with the COMELEC,
that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria MacapagalArroyo for constitutional reforms.' The Lambino Group
thus admits that their people's' initiative is an
unqualified support to the agenda' of the
incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of
people's voice' or sovereign will' in the present
initiative."
It will be observed that the President has authority, as stated
in her oath of office,178 only to preserve and defend the
Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and
submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need
not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority
to propose constitutional amendments, since her authority
to propose new legislation is not in controversy. It has been
an accepted practice for Presidents in this jurisdiction to
propose new legislation. One of the more prominent
instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover,
the annual general appropriations bill has always been based
on the budget prepared by the President, which - for all
37
What remains for discussion in the Comprehensive Compact
would merely be the implementing details for these
"consensus points" and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is
inconsistent with the limits of the President's
authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws
of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOAAD with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase I
covered a three-year transitional period involving the putting
up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government
through amendment or repeal of R.A. No. 6734, which was
then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements
on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD
virtually guarantees that the "necessary changes to
the legal framework" will be put in place, the GRP-MNLF
final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP
38
international court, was to try persons who bore the greatest
responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision
for the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord
created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided therein,
citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and
that it can only create binding obligations and rights between
the parties in municipal law, not in international law. Hence,
the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement
of an internal armed conflict it is easy to assume
and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to
have done, that the mere fact that in addition to
the parties to the conflict, the document
formalizing the settlement is signed by foreign
heads of state or their representatives and
representatives of international organizations,
means the agreement of the parties is
internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the
parties to the conflict and the mediator or facilitator of
39
from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new
situation of conflict created. Such consequences such
as action by the Security Council pursuant to Chapter
VII arise from the situation and not from the
agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an
internal armed conflict cannot be ascribed the
same
status
as
one
which
settles
an
international armed conflict which, essentially,
must be between two or more warring States.
The Lom Agreement cannot be characterised as
an international instrument. x x x" (Emphasis,
italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it
a binding character under international law.
In another vein, concern has been raised that the MOA-AD
would amount to a unilateral declaration of the Philippine
State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it
would have to amend its Constitution accordingly regardless
of the true will of the people. Cited as authority for this view
is Australia v. France,181 also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ
the legality of France's nuclear tests in the South Pacific.
France refused to appear in the case, but public statements
from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series
40
of action is to be limited, a restrictive interpretation is
called for.
xxxx
unilateral
Unlike in the Nuclear Tests Case, the ICJ held that the
statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding
the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a
unilateral act, account must be taken of all the factual
circumstances in which the act occurred. For example,
in the Nuclear Tests cases, the Court took the
view that since the applicant States were not
the only ones concerned at the possible
continuance of atmospheric testing by the
French
Government,
that
Government's
unilateral declarations had conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these tests
(I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53).
In the particular circumstances of those cases,
the French Government could not express an
intention to be bound otherwise than by
unilateral declarations. It is difficult to see how
it could have accepted the terms of a negotiated
solution with each of the applicants without
thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the
41
present case are radically different. Here, there
was nothing to hinder the Parties from
manifesting an intention to accept the binding
character of the conclusions of the Organization
of African Unity Mediation Commission by the
normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made
by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present
case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would
not have amounted to a unilateral declaration on the part of
the Philippine State to the international community. The
Philippine panel did not draft the same with the clear
intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF.
While there were States and international organizations
involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in
the Lom Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is signed by
representatives of states and international organizations
does not mean that the agreement is internationalized so as
to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to
States, not to give legal effect to such commitments would
not be detrimental to the security of international intercourse
- to the trust and confidence essential in the relations among
States.
In one important respect, the circumstances surrounding the
MOA-AD are closer to that of Burkina Faso wherein, as
already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in
42
wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter
for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v.
Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar,
and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
43
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty
of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of
1991 requires all national offices to conduct consultations
before any project or program critical to the environment and
human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.
44
Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally
defective.
WHEREFORE, respondents' motion to dismiss is DENIED.
The main and intervening petitions are GIVEN DUE COURSE
and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.
SO ORDERED.
45
SEPARATE CONCURRING OPINION
PUNO, C.J.:
It is the duty of the government to seek a just,
comprehensive and enduring peace with any rebel group but
the search for peace must always be in accord with the
Constitution. Any search for peace that undercuts the
Constitution must be struck down. Peace in breach of the
Constitution is worse than worthless.
I. Historical Roots
A historical perspective of our Muslim problem is helpful.
From time immemorial, an enduring peace with our Muslim
brothers and sisters in Mindanao has eluded our grasp. Our
Muslim problem exploded in March of 1968 when Muslim
trainees were massacred by army officers at Corregidor.
About 180 Muslim trainees had been recruited in the previous
year as a part of a covert force named Jabidah,1 allegedly
formed to wrest away Sabah from Malaysia. The trainees
were massacred when they reportedly protested their
unbearable training and demanded the return to their
home.2 The Jabidah Massacre fomented the formation of
Muslim groups clamoring for a separate Islamic state. One of
these groups was the Muslim Independence Movement
(MIM), founded by the then Governor of Cotabato, Datu
Udtog Matalam.3 Another was the Nurul Islam, led by Hashim
Salamat.
On September 21, 1972 Martial Law was declared by
President Ferdinand E. Marcos. Among the reasons cited to
justify martial law were the armed conflict between Muslims
and Christians and the Muslim secessionist movement in the
Southern Philippines.4 The imposition of martial law drove
some of the Muslim secessionist movements to the
underground. One of them was the Moro National Liberation
Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot
to prominence, when the Organization of Islamic Conference
46
Salamat led to the formation of the Moro Islamic Liberation
Front (MILF), headed by Hashim Salamat. Thus, the
Maguindanao-led MILF, parted ways with the Tausug-led
MNLF.
In 1986, the People Power Revolution catapulted Corazon C.
Aquino to the Presidency. Forthwith, she ordered the peace
talks with the MNLF to resume. The 1987 Constitution was
ratified by the people. It provided for the creation of the
Autonomous Region of Muslim Mindanao through an act of
Congress. But again the talks with the MNLF floundered in
May 1987.7 Be that as it may, it was during President
Aquino's governance that a culture of peace negotiations
with the rebellious MNLF and MILF was cultivated.8 Thus, the
Autonomous Region of Muslim Mindanao (ARMM) was created
through Republic Act No. 6734. The law took effect on August
1, 1989.
Then came the presidency of President Fidel V. Ramos. He
issued on September 15, 1993, Executive Order No., 125
(E.O. 125) which provided for a comprehensive, integrated
and holistic peace process with the Muslim rebels. E.O. 125
created the Office of the Presidential Adviser on the Peace
Process to give momentum to the peace talks with the MNLF.
In 1996, as the GRP-MNLF peace negotiations were
successfully winding down, the government prepared to deal
with the MILF problem. Formal peace talks started on January
of 1997, towards the end of the Ramos administration. The
Buldon Ceasefire Agreement was signed in July 19979 but
time ran out for the negotiations to be completed.
President Joseph Estrada continued the peace talks with the
MILF. The talks, however, were limited to cessation of
hostilities and did not gain any headway. President Estrada
gave both sides until December 1999 to finish the peace
process.10 They did not meet the deadline. The year 2000
saw the escalation of acts of violence and the threats to the
lives and security of civilians in Southern Mindanao. President
47
Measures to address the legitimate grievances of the
Bangsamoro people arising from the unjust dispossession
and/or marginalization;
Bangsamoro people's right to utilize and develop their
ancestral domain and ancestral lands;
Economic cooperation arrangements for the benefit of the
entire Bangsamoro people."
On July 27, 2008, a Joint Statement on the Memorandum of
Agreement on Ancestral Domain (MOA-AD) was signed by
Chairperson Rodolfo C. Garcia on behalf of the GRP Peace
Panel, and Mohagher Iqbal on behalf of the MILF Panel. In the
Joint Statement, it was declared that the final draft of the
MOA-AD has already been initialed. It was announced that
"both sides reached a consensus to initial the final draft
pending its official signing by the Chairmen of the two peace
panels in early August 2008, in Putrajaya, Malaysia."13
The Joint Statement triggered the filing of the petitions at bar.
These Petitions, sought among others, to restrain the signing
of the MOA-AD. On August 4, 2008, a day before the intended
signing of the initialed MOA-AD, this Court issued a
Temporary Restraining Order stopping the signing of the
MOA-AD. Several petitions-in-intervention were also filed
praying for the same relief. On August 8, 2008 and
September 1, 2008, the respondents through the Solicitor
General, submitted official copies of the initialed MOA-AD to
the Court and furnished the petitioners and petitioners-inintervention with copies of the same.
All the petitions were heard by the Court in three separate
days of oral arguments. In the course of the arguments, the
Solicitor General informed the Court that the MOA-AD will not
be signed "in its present form or any other form."14
Thereafter, the government Peace Panel was dismantled by
the President.
II. Petitions should be Decided on the Merits
48
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.
This component involves the vigorous implementation of
various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new
legislation or even constitutional amendments.
xxxx
c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE
DIFFERENT REBEL GROUPS. This component involves the
conduct of face-to-face negotiations to reach peaceful
settlement with the different rebel groups. It also involves the
effective implementation of peace agreements. (Emphasis
supplied)
Executive Order No. 3, was later amended by E.O. No. 555,17
and was followed by the Tripoli Peace Agreement of 2001.
The Tripoli Peace Agreement of 2001 became the basis for
several rounds of exploratory talks between the GRP Peace
Panel and the MILF. These exploratory talks resulted in the
signing of the Joint Statements of the GRP and MILF peace
panels to affirm commitments that implement the Tripoli
Agreement of 2001, including the ancestral domain aspect.
The issuance of the Joint Statements culminated in the
initialing of the MOA-AD.18
It is crystal clear that the initialing of the MOA-AD is but the
evidence of the government peace negotiating panel's assent
to the terms contained therein. If the MOA-AD is
constitutionally infirm, it is because the conduct of the peace
process itself is flawed. It is the constitutional duty of the
Court is to determine whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on
the part of the government peace negotiating panel in the
conduct of the peace negotiations with the MILF. The Court
should not restrict its review on the validity of the MOA-AD
which is but the end product of the flawed conduct of the
peace negotiation with the MILF.
inappropriately
49
irreversible is undertaken under cover of an unconstitutional
act. Schwartz cites one vital consideration in determining
ripeness, viz:
In dealing with ripeness, one must distinguish between
statutes and other acts that are self-executing and those that
are not. If a statute is self executing, it is ripe for challenge as
soon as it is enacted. For such a statute to be subject to
judicial review, it is not necessary that it be applied by an
administrator, a prosecutor, or some other enforcement
officer in a concrete case.22
Although Schwartz employs the term "statute," he qualifies
that the principle enunciated applies to other governmental
acts as well.23
Prescinding from these parameters, it is evident that the
Court is confronted with a MOA-AD that is heavily laden with
self-executing components. Far from the representation of
the Solicitor General, the MOA-AD is not a mere collection of
consensus points,24 still bereft of any legal consequence.
The commitments made by the government panel under the
MOA-AD can be divided into (1) those which are selfexecutory or are immediately effective by the terms of the
MOA-AD alone, (2) those with a period or which are to be
effective within a stipulated time, and (3) those that are
conditional or whose effectivity depends on the outcome of a
plebiscite.
Let us cast an eye on the self executory provisions of the
MOA-AD which will demolish the argument of the respondents
that the issues in the petitions at bar are not ripe for
adjudication.
The MOA-AD provides that "the Parties affirm that the core of
the BJE shall constitute the present geographic area of the
ARMM, including the municipalities of Baloi, Munai,
Nunungan, Pantar, Tagoloan and Tangkal in the province of
Lanao del Norte that voted for inclusion in the ARMM during
the 2001 plebiscite."
50
look at the development of events to ascertain whether the
petitioner making the constitutional challenge is confronted
with a continuing harm or a substantial potential of harm.
Mootness is sometimes viewed as "the doctrine of standing
set in a time frame: The requisite personal interest must exist
at the commencement of the litigation and must continue
throughout its existence."29 Stated otherwise, an actual
controversy must be extant at all stages of judicial review,
not merely at the time the complaint is filed.30
Respondents insist that the petitions at bar are moot for
three reasons: (1) the petitioners North Cotabato and
Zamboanga have already been furnished copies of the MOAAD; (2) the Executive Secretary has issued a Memorandum
that the government will not sign the MOA-AD and, (3) the
GRP Peace Panel has been dissolved by the President.
These grounds are barren grounds. For one, the press
statements of the Presidential Adviser on the Peace Process,
Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will
still be used as a major reference in future negotiations.31
For another, the MILF considers the MOA-AD a "done deal,"
32 hence, ready for implementation. On the other hand, the
peace panel may have been temporarily dismantled but the
structures set up by the Executive and their guidelines which
gave rise to the present controversy remain intact. With all
these realities, the petitions at bar fall within that exceptional
class of cases which ought to be decided despite their
mootness because the complained unconstitutional acts are
"capable of repetition yet evading review."33
This well-accepted exception to the non-reviewability of moot
cases was first enunciated in the case of Southern Pacific
Terminal Co. v. ICC.34 The United States Supreme Court held
that a case is not moot where interests of a public character
are asserted under conditions that may be immediately
repeated, merely because the particular order involved has
expired.
In the petitions at bar, one need not butt heads with the
Solicitor General to demonstrate the numerous constitutional
infirmities of the MOA-AD. There is no need to iterate and
reiterate them. Suffice to stress that it is because of these
evident breaches, that the MOA-AD requires the present
Constitution to undergo radical revisions. Yet, the unblushing
threat is made that the MOA-AD which shattered to
smithereens all respect to the Constitution will continue to be
a reference point in future peace negotiations with the MILF.
In fine, the MOA-AD is a constitutional nightmare that will
come and torment us again in the near future. It must be
slain now. It is not moot.
Let us adhere to the orthodox thought that once a
controversy as to the application of a constitutional provision
is raised before this Court, it becomes a legal issue which the
Court is hide-bound to decide.35 Supervening events,
whether contrived or accidental, cannot prevent the Court
from rendering a decision if there is a grave violation of the
Constitution has already been committed or the threat of
being committed again is not a hypothetical fear.36 It is the
function of judicial review to uphold the Constitution at all
cost or we forfeit the faith of the people.
III. The Deviation from the MNLF
Model of Pursuing Peace with
Rebels is Inexplicable
The MNLF model in dealing with rebels which culminated in
the Peace Agreement of 1996, was free from any infirmity
because it respected the metes and bounds of the
Constitution. While the MNLF model is ostensibly based on
the Tripoli Agreement of 1976, its implementation was in
perfect accord with Philippine laws. The implementation of
the Tripoli Agreement of 1976 came in two phases: the first,
under the legislative power of then President Marcos and the
second, under the provisions of Article X of the 1987
Constitution and its implementing legislation, Republic Act
No. 6734.37
51
Under President Marcos, autonomy in the affected provinces
was recognized through Presidential Proclamation No.1628. It
declared autonomy in 13 provinces and constituted a
provisional government for the affected areas. The
proclamation was followed by a plebiscite and the final
framework for the autonomous region was embodied in
Presidential Decree No.1618.
The establishment of the autonomous region under P.D. 1628
was constitutionalized by the commissioners in the 1987
Constitution as shown by the following exchange of views:
MR. ALONTO: Madam President, I have stated from the start
of our consideration of this Article on Local Governments that
the autonomous region exists now in this country. There is a
de facto existence of an autonomous government in what we
call now Regions IX and XII. Region IX is composed of the
provinces of Tawi-Tawi, Sulu, Basilan, Zamboanga City,
Zamboanga del Sur and Zamboanga del Norte, including all
the component cities in the provinces. Region XII is
composed of the Provinces of Lanao del Norte, Lanao del Sur,
Maguindanao, Sultan Kudarat and North Cotabato. This
autonomous
region
has
its
central
governmental
headquarters in Zamboanga City for Region IX and in
Cotabato City for Region XII. In fact, it is stated by
Commissioner Ople that it has an executive commission and
a legislative assembly.
52
accompli and that all we have to do here is say "amen" to the
whole thing and it we do not say "amen," they will still
continue to be autonomous regions. I insist on my
amendment, Madam President.
MR. OPLE: May I provide more information to Commissioner
de Castro on this matter.
First of all, we have to correct the misimpression that the
autonomous regions, such as they now exist in Mindanao, do
not enjoy the recognition of the central government.
Secondly, may I point out that the autonomy existing now in
Regions IX and XII is a very imperfect kind of autonomy. We
are not satisfied with the legal sufficiency of these regions as
autonomous regions and that is the reason the initiative has
been taken in order to guarantee by the Constitution the
right to autonomy of the people embraced in these regions
and not merely on the sufferance of any existing or future
administration. It is a right, moreover, for which they have
waged heroic struggles, not only in this generation but in
previous eras and, therefore, what we seek is constitutional
permanence for this right.
May I also point out, Madam President, that the Tripoli
Agreement was negotiated under the aegis of foreign
powers. No matter how friendly and sympathetic they are to
our country, this is under the aegis of the 42-nation Islamic
Conference. Should our brothers look across the seas to a
conclave of foreign governments so that their rights may be
recognized in the Constitution? Do they have to depend upon
foreign sympathy so that their right can be recognized in
final, constitutional and durable form.
given life by Republic Act No. 6734,39 the Organic Act of the
ARMM. Our executive officials were guided by and did not
stray away from these legal mandates at the negotiation and
execution of the Peace Agreement with the MNLF in 1996.
Without ifs and buts, its Whereas Clauses affirmed our
sovereignty and territorial integrity and completely respected
our Constitution.40
In stark contrast, the peace process with the MILF draws its
mandate principally from Executive Order No. 3. This
executive order provided the basis for the execution of the
Tripoli Agreement of 2001 and thereafter, the MOA-AD.
During the whole process, the government peace negotiators
conducted themselves free from the strictures of the
Constitution. They played fast and loose with the do's and
dont's of the Constitution. They acted as if the grant of
executive power to the President allows them as agents to
make agreements with the MILF in violation of the
Constitution. They acted as if these violations can anyway be
cured by committing that the sovereign people will change
the Constitution to conform with the MOA-AD. They forgot
that the Constitution grants power but also sets some
impotence on power.
IV. The Exercise of Executive Power is
Subject to the Constitution
Clearly, the respondents grossly misunderstood and patently
misapplied the executive powers of the President.
53
he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus or the extension thereof, and
must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus
shall apply only to persons judicially charged for rebellion or
offenses inherent in, or directly connected with, invasion.
54
constitutional organ which can be called upon to determine
the proper allocation of powers between the several
departments and among the integral or constituent units
thereof.
In fine, there is no power in the Constitution that can run riot.
There is no power in the Constitution that is unbounded.
There is no power in the Constitution that can be exercised if
it will destroy the Constitution. For all powers in the
Constitution are designed to preserve the Constitution.
In other words, the President as Chief Executive can
negotiate peace with the MILF but it is peace that will insure
that our laws are faithfully executed. The President can seek
peace with the MILF but without crossing the parameters of
powers marked in the Constitution to separate the other
branches of government to preserve our democracy. For even
in times of war, our system of checks and balances cannot be
infringed.45 More so in times where the only danger that
faces the State is the lesser danger of rebellion.
Needless to stress, the power of the President to negotiate
peace with the MILF is not plenary. While a considerable
degree of flexibility and breadth is accorded to the peace
negotiating panel, the latitude has its limits - the
Constitution. The Constitution was ordained by the sovereign
people and its postulates may not be employed as bargaining
chips without their prior consent.
V. The Constitution as Compact of the People
The question may be asked: In the process of negotiating
peace with the MILF, why cannot the Executive commit to do
acts which are prohibited by the Constitution and seek their
ratification later by its amendment or revision?
Many philosophical perspectives have been advanced in
reply to this question. Yet, no theory has been as influential,
nor has been as authoritative, as the social contract
theory,46 articulated by John Locke, viz:
55
government, determines and limits their powers, and
prescribes guarantees to the basic rights of the individual.49
xxxx
Some authorities have also considered the constitution as a
compact, an "agreement of the people, in their individual
capacities, reduced to writing, establishing and fixing certain
principles for the government of themselves." This notion
expresses the old theory of the social contract obligatory on
all parties and revocable by no one individual or group less
than the majority of the people; otherwise it will not have the
attribute of law.50 (Emphasis supplied)
In sum, there is no power nor is there any right to violate the
Constitution on the part of any official of government. No one
can claim he has a blank check to violate the Constitution in
advance and the privilege to cure the violation later through
amendment of its provisions. Respondents' thesis of violate
now, validate later makes a burlesque of the Constitution.
56
Francisco v. House of Rep, GR. 160261, November 10,
2013
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict,
no matter how passionate and seemingly irreconcilable it
may appear to be, over the determination by the
independent branches of government of the nature, scope
and extent of their respective constitutional powers where
the Constitution itself provides for the means and bases for
its resolution.
Our nation's history is replete with vivid illustrations of the
often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is
confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent
cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization
that the present controversy subject of the instant petitions
whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of
Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political
question has resulted in a political crisis. Perhaps even
more truth to the view that it was brought upon by a political
crisis of conscience.
In any event, it is with the absolute certainty that our
Constitution is sufficient to address all the issues which this
controversy
spawns
that
this
Court
unequivocally
pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not
departure from, the Constitution.
57
violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be
RULE II
INITIATING IMPEACHMENT
58
RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment Proceedings Deemed Initiated.
In cases where a Member of the House files a verified
complaint of impeachment or a citizen files a verified
complaint that is endorsed by a Member of the House
through a resolution of endorsement against an impeachable
officer, impeachment proceedings against such official are
deemed initiated on the day the Committee on Justice finds
that the verified complaint and/or resolution against such
official, as the case may be, is sufficient in substance, or on
the date the House votes to overturn or affirm the finding of
the said Committee that the verified complaint and/or
resolution, as the case may be, is not sufficient in substance.
In cases where a verified complaint or a resolution of
impeachment is filed or endorsed, as the case may be, by at
least one-third (1/3) of the Members of the House,
impeachment proceedings are deemed initiated at the time
of the filing of such verified complaint or resolution of
impeachment with the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No impeachment proceedings
shall be initiated against the same official more than once
within the period of one (1) year.
59
form,"9 but voted to dismiss the same on October 22, 2003
for being insufficient in substance.10 To date, the Committee
Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI
of the Constitution.
Four months and three weeks since the filing on June 2, 2003
of the first complaint or on October 23, 2003, a day after the
House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary
General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B.
Fuentebella (Third District, Camarines Sur) against Chief
Justice Hilario G. Davide, Jr., founded on the alleged results of
the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was
accompanied
by
a
"Resolution
of
Endorsement/Impeachment" signed by at least one-third
(1/3) of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of
Representatives, et. al., most of which petitions contend that
the filing of the second impeachment complaint is
unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more
than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
alleging that he has a duty as a member of the Integrated
Bar of the Philippines to use all available legal remedies to
stop an unconstitutional impeachment, that the issues raised
in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim
of the capricious and arbitrary changes in the Rules of
Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano
Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted
60
Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as
taxpayers and members of the legal profession, pray in their
petition for Prohibition for an order prohibiting respondent
House of Representatives from drafting, adopting, approving
and transmitting to the Senate the second impeachment
complaint, and respondents De Venecia and Nazareno from
transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F.
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that,
as members of the House of Representatives, they have a
legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their petition
for Certiorari/Prohibition that the second impeachment
complaint and any act proceeding therefrom be declared null
and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al.,
claiming that they have a right to be protected against all
forms of senseless spending of taxpayers' money and that
they have an obligation to protect the Supreme Court, the
Chief Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a
class suit" and pray that (1) the House Resolution endorsing
the second impeachment complaint as well as all issuances
emanating therefrom be declared null and void; and (2) this
Court enjoin the Senate and the Senate President from taking
cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist
from conducting any proceedings or to act on the
impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc.,
whose members are citizens and taxpayers, and its copetitioner Crispin T. Reyes, a citizen, taxpayer and a member
of the Philippine Bar, both allege in their petition, which does
not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest
and pray that Sections 16 and 17 of the House Impeachment
Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a
citizen and a member of the Philippine Bar Association and of
the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for
the issuance of a Temporary Restraining Order and
Permanent Injunction to enjoin the House of Representatives
from proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the
Philippines, alleging that it is mandated by the Code of
Professional Responsibility to uphold the Constitution, prays
in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and
that the House of Representatives be permanently enjoined
from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
prays in his petition for Certiorari and Prohibition that the
House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
Foundation Inc., et. al., in their petition for Prohibition and
Injunction which they claim is a class suit filed in behalf of all
citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance
of a writ prohibiting respondents House of Representatives
and the Senate from conducting further proceedings on the
second impeachment complaint and that this Court declare
as unconstitutional the second impeachment complaint and
the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
61
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance
and that as an official of the Philippine Judicial Academy, he
has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in
discharging their duties in accordance with the Constitution,
prays for the issuance of a writ prohibiting the House of
Representatives
from
transmitting
the
Articles
of
Impeachment to the Senate and the Senate from receiving
the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
taxpayer, alleges in his petition for Prohibition that
respondents Fuentebella and Teodoro at the time they filed
the second impeachment complaint, were "absolutely
without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the
alleged abuse of powers of the Chief Justice to disburse the
(JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores
and Hector L. Hofilea, alleging that as professors of law they
have an abiding interest in the subject matter of their
petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the
minds of their students," pray that the House of
Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether
or not the Judicial Development Fund (JDF) was spent in
accordance with law and that the House of Representatives
does not have exclusive jurisdiction in the examination and
audit thereof, prays in his petition "To Declare Complaint Null
and Void for Lack of Cause of Action and Jurisdiction" that the
second impeachment complaint be declared null and void.
62
separation of powers and is a direct violation of the
constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the
House of Representatives, a motion was put forth that the
second impeachment complaint be formally transmitted to
the Senate, but it was not carried because the House of
Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have
yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which
were filed on or before October 28, 2003, Justices Puno and
Vitug offered to recuse themselves, but the Court rejected
their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this
Court in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral
arguments on November 5, 2003, at 10:00 a.m.; and (d)
appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts
that would render the petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr.
and/or its co-respondents, by way of special appearance,
submitted a Manifestation asserting that this Court has no
jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal
branch of government under the Constitution, from the
performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q.
63
Leave of Court to Intervene and to Admit the Herein
Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc. filed a
Motion for Intervention in G.R. No. 160261. On November 5,
2003, World War II Veterans Legionnaires of the Philippines,
Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310.
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's
Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the
amici curiae and the arguments of petitioners, intervenors
Senator Pimentel and Attorney Makalintal, and Solicitor
General Alfredo Benipayo on the principal issues outlined in
an Advisory issued by this Court on November 3, 2003, to
wit:
Whether the certiorari jurisdiction of the Supreme Court may
be invoked; who can invoke it; on what issues and at what
time; and whether it should be exercised by this Court at this
time.
f) constitutionality of the House Rules on Impeachment vis-avis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and
substantive issues arising from the instant petitions as well
as the myriad arguments and opinions presented for and
against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of
judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites
for the exercise of the power of judicial review have been
fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to
exercise the power of judicial review to determine the validity
of the second impeachment complaint.
This Court's power of judicial review is conferred on the
judicial branch of the government in Section 1, Article VIII of
our present 1987 Constitution:
power
to
initiate
all
cases
of
64
Such power of judicial review was early on exhaustively
expounded upon by Justice Jose P. Laurel in the definitive
1936 case of Angara v. Electoral Commission23 after the
effectivity of the 1935 Constitution whose provisions, unlike
the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial
power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper
allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government
along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the
courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a
period of more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act
of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This
is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in
the executive and legislative departments of the
government.24 (Italics in the original; emphasis and
underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of
65
government along constitutional channels" is inherent in all
courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual
controversies involving rights which are legally demandable
and enforceable."26
Thus, even in the United States where the power of judicial
review is not explicitly conferred upon the courts by its
Constitution, such power has "been set at rest by popular
acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of
Marbury v. Madison27 that the power of judicial review was
first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made
in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as
well as other departments, are bound by that instrument.28
(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted
political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative branches
of our government in fact effectively acknowledged this
power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
66
between them."33 To him, "[j]udicial review is the chief,
indeed the only, medium of participation or instrument of
intervention of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by "any branch or instrumentalities
of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into
block letter law the so-called "expanded certiorari
jurisdiction" of this Court, the nature of and rationale for
which are mirrored in the following excerpt from the
sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
xxx
67
Tuason & Co., Inc. v. Land Tenure Administration,36 this
Court, speaking through Chief Justice Enrique Fernando,
declared:
Union
v.
Executive
68
the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may
make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be
clear, resort to other aids is available. In still the same case
of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face."
The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the
framers's
understanding
thereof.46
(Emphasis
and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of
judicial review that respondents Speaker De Venecia, et. al.
and intervenor Senator Pimentel raise the novel argument
69
review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional
law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some
of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53
Indeed, although the Philippine Constitution can trace its
origins to that of the United States, their paths of
development have long since diverged. In the colorful words
of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the
Philippine Supreme Court and that of the U.S. Supreme Court
is that while the power of judicial review is only impliedly
granted to the U.S. Supreme Court and is discretionary in
nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is
not just a power but also a duty, and it was given an
expanded definition to include the power to correct any
grave abuse of discretion on the part of any government
branch or instrumentality.
There are also glaring distinctions between the U.S.
Constitution and the Philippine Constitution with respect to
the power of the House of Representatives over
impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution,
though vesting in the House of Representatives the exclusive
power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in
70
that the petition raises a justiciable controversy and that
when an action of the legislative branch is seriously alleged
to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.
In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as
a member of the House Electoral Tribunal for being violative
of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House
representation in the Commission on Appointments was
based on proportional representation of the political parties
as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that
the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject
to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is
vested exclusively in Congress, this does not detract from the
power of the courts to pass upon the constitutionality of acts
of Congress. In Angara v. Electoral Commission,66 it ruled
that confirmation by the National Assembly of the election of
any member, irrespective of whether his election is
contested, is not essential before such member-elect may
discharge the duties and enjoy the privileges of a member of
the National Assembly.
Finally, there exists no constitutional basis for the contention
that the exercise of judicial review over impeachment
proceedings would upset the system of checks and balances.
Verily, the Constitution is to be interpreted as a whole and
"one section is not to be allowed to defeat another."67 Both
are integral components of the calibrated system of
independence and interdependence that insures that no
branch of government act beyond the powers assigned to it
by the Constitution.
Essential Requisites for Judicial Review
71
of issues upon which the court depends for illumination of
difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the
petitions, contends that petitioners do not have standing
since only the Chief Justice has sustained and will sustain
direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that
petitioners have standing since this Court had, in the past,
accorded standing to taxpayers, voters, concerned citizens,
legislators in cases involving paramount public interest70
and transcendental importance,71 and that procedural
matters are subordinate to the need to determine whether or
not the other branches of the government have kept
themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to
them.72 Amicus curiae Dean Raul Pangalangan of the U.P.
College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his
rights by seeking the same remedies, as in the case of the
Chief Justice who, for ethical reasons, cannot himself invoke
the jurisdiction of this Court, the courts will grant petitioners
standing.
There is, however, a difference between the rule on realparty-in-interest and the rule on standing, for the former is a
concept of civil procedure73 while the latter has
constitutional underpinnings.74 In view of the arguments set
forth regarding standing, it behooves the Court to reiterate
the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is
meant by locus standi and to distinguish it from real party-ininterest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important
to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions
72
When suing as a citizen, the interest of the petitioner
assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or
any government act is invalid, but also that he sustained or is
in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when
the proceeding involves the assertion of a public right,78 the
mere fact that he is a citizen satisfies the requirement of
personal interest.
In the case of a taxpayer, he is allowed to sue where there is
a claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement
of an invalid or unconstitutional law.79 Before he can invoke
the power of judicial review, however, he must specifically
prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he would
sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has
merely a general interest common to all members of the
public.80
At all events, courts are vested with discretion as to whether
or not a taxpayer's suit should be entertained.81 This Court
opts to grant standing to most of the petitioners, given their
allegation that any impending transmittal to the Senate of
the Articles of Impeachment and the ensuing trial of the Chief
Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the
validity of any official action which he claims infringes his
prerogatives as a legislator.82 Indeed, a member of the
73
formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition
by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental
importance.
Nagmamalasakit
na
mga
Manananggol
ng
mga
Manggagawang Pilipino, Inc., et. al. sought to join petitioner
Francisco in G.R. No. 160261. Invoking their right as citizens
to intervene, alleging that "they will suffer if this insidious
scheme of the minority members of the House of
Representatives is successful," this Court found the requisites
for intervention had been complied with.
74
Lastly, as to Jaime N. Soriano's motion to intervene, the same
must be denied for, while he asserts an interest as a
taxpayer, he failed to meet the standing requirement for
bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional
protection against abuses of legislative power," or that there
is a misapplication of such funds by respondent COMELEC, or
that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an
invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed
even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe
him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice
Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by then
been accomplished or performed by either branch before a
court may come into the picture."96 Only then may the
courts pass on the validity of what was done, if and when the
latter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the
validity of the filing of the second impeachment complaint
against the Chief Justice in accordance with the House
Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts
75
Court is shown by the fact that, as previously discussed,
neither the House of Representatives nor the Senate is
clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment
proceedings or otherwise, as said power is exclusively vested
in the judiciary by the earlier quoted Section I, Article VIII of
the Constitution. Remedy cannot be sought from a body
which is bereft of power to grant it.
Justiciability
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
In the leading case of Tanada v. Cuenco,98 Chief Justice
Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and
seemingly without any rhyme or reason, this Court vacillated
on its stance of taking cognizance of cases which involved
political questions. In some cases, this Court hid behind the
cover of the political question doctrine and refused to
exercise its power of judicial review.100 In other cases,
however, despite the seeming political nature of the therein
issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark
1988 case of Javellana v. Executive Secretary102 which
raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification
76
lack or excess of jurisdiction on the part or instrumentality of
the government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably
by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of
martial law failed because the government set up the
defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during the
martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the
Members of the Commission who are not lawyers, allow me
to explain. I will start with a decision of the Supreme Court in
1973 on the case of Javellana vs. the Secretary of Justice, if I
am not mistaken. Martial law was announced on September
22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published
anything about it. In fact, the media could not publish any
story not only because our main writers were already
incarcerated, but also because those who succeeded them in
their jobs were under mortal threat of being the object of
wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say that upon
77
session room where the case was being heard. I then
informed the Court and the parties the presidential
proclamation declaring that the 1973 Constitution had been
ratified by the people and is now in force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January
10 to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified
of any referendum in their respective places of residence,
much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So,
a majority of the members of the Court felt that there had
been no referendum.
Second, a referendum cannot substitute for a plebiscite.
There is a big difference between a referendum and a
plebiscite. But another group of justices upheld the defense
that the issue was a political question. Whereupon, they
dismissed the case. This is not the only major case in which
the plea of "political question" was set up. There have been a
number of other cases in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to
perform its functions, it faced the following questions: What
is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced
by a judiciary party. In a decided case, a husband complained
that his wife was unwilling to perform her duties as a wife.
The Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital
duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual
compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I
provides that:
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable
or enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important
function. The powers of government are generally considered
divided into three branches: the Legislative, the Executive
and the Judiciary. Each one is supreme within its own sphere
and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is
vested in courts of justice.
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
78
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission,
Chief Justice Concepcion further clarified the concept of
judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power"
but judicial power is not vested in the Supreme Court alone
but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.
79
political questions: (1) "truly political questions" and (2)
those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the
reason for respect of the doctrine of separation of powers to
be maintained. On the other hand, by virtue of Section 1,
Article VIII of the Constitution, courts can review questions
which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin
of the UP College of Law, this Court has in fact in a number of
cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through
Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that
this Court must perform under the Constitution. Moreover, as
held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the
rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability
of the principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani
Cruz, this Court ruled:
80
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from
our current concept, for Section 1, Article VIII of the
Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political
question from a non-justiciable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court
shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.
81
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13
and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume
jurisdiction over a constitutional question only if it is shown
that the essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an actual
case or controversy involving a conflict of legal rights
susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper
party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of
constitutionality unless it is truly unavoidable and is the very
lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all
seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest.
In determining whether one, some or all of the remaining
substantial issues should be passed upon, this Court is
guided by the related cannon of adjudication that "the court
should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue
that, among other reasons, the second impeachment
complaint is invalid since it directly resulted from a
Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the
rules and jurisprudence on investigations in aid of legislation;
(b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal
its
of
of
by
82
under the Bill of Rights must be respected, including the right
to due process and the right not be compelled to testify
against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and
Pete Quirino Quadra, while joining the original petition of
petitioners Candelaria, et. al., introduce the new argument
that since the second impeachment complaint was verified
and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the
provisions of Section 3 (4), Article XI of the Constitution
which reads:
Section 3(4) In case the verified complaint
impeachment is filed by at least one-third of
of the House, the same shall constitute
Impeachment, and trial by the Senate
proceed.
or resolution of
all the Members
the Articles of
shall forthwith
83
is the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a
ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for
deciding the instant consolidated petitions would not only
render for naught the efforts of the original petitioners in G.R.
No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is
made easier by the fact that said intervenors Macalintal and
Quadra have joined in the petition of Candelaria, et. al.,
adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues,
inextricably linked as they are, constitute the very lis mota of
the instant controversy: (1) whether Sections 15 and 16 of
Rule V of the House Impeachment Rules adopted by the 12th
Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a
result thereof, the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial
restraint on the ground that the Senate, sitting as an
impeachment court, has the sole power to try and decide all
cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al.
argue that "[t]here is a moral compulsion for the Court to not
assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this
argument is very much like saying the Legislature has a
84
said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to
decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of
his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed
mass disqualification, if sanctioned and ordered, would leave
the Tribunal no alternative but to abandon a duty that no
other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire
membership of Senators.
To our mind, this is the overriding consideration that the
Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which is
in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that
the framers of the Constitution could not have been unaware
of the possibility of an election contest that would involve all
Senatorselect, six of whom would inevitably have to sit in
judgment thereon. Indeed, such possibility might surface
again in the wake of the 1992 elections when once more, but
for the last time, all 24 seats in the Senate will be at stake.
Yet the Constitution provides no scheme or mode for settling
such unusual situations or for the substitution of Senators
designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their
trust and hopes of vindication in the fairness and sense of
justice of the Members of the Tribunal. Justices and Senators,
singly and collectively.
Let us not be misunderstood as saying that no SenatorMember of the Senate Electoral Tribunal may inhibit or
disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his
85
earnest and vital controversy between individuals. It never
was the thought that, by means of a friendly suit, a party
beaten in the legislature could transfer to the courts an
inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it.' . . . 'It is not
the habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied.'
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of. This rule has found most varied application.
Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment
can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one
who lacks a personal or property right. Thus, the challenge
by a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v. Hughes,
the Court affirmed the dismissal of a suit brought by a citizen
who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of
the federal Maternity Act was not entertained although made
by the Commonwealth on behalf of all its citizens.
86
3. the question of constitutionality must be raised at the
earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of
the case.136
Respondents Speaker de Venecia, et. al. raise another
argument for judicial restraint the possibility that "judicial
review of impeachments might also lead to embarrassing
conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that
it would be confusing and humiliating and risk serious
political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an
impeachable official.137 Intervenor Soriano echoes this
argument by alleging that failure of this Court to enforce its
Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in
the judiciary.
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this
Court to refrain from upholding the Constitution in all
impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if
not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court
refuses to act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme
Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also
political consequences. Those political consequences may
follow even where the Court fails to grant the petitioner's
prayer to nullify an act for lack of the necessary number of
87
Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the
House Impeachment Rules do not violate Section 3 (5) of
Article XI of our present Constitution, contending that the
term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective
body, which has the exclusive power to initiate all cases of
impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit:
(1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least
1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting
the initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation
of the term "initiate." Resort to statutory construction is,
therefore, in order.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who eventually
became an Associate Justice of this Court, agreed on the
meaning of "initiate" as "to file," as proffered and explained
by Constitutional Commissioner Maambong during the
Constitutional
Commission
proceedings,
which
he
(Commissioner Regalado) as amicus curiae affirmed during
the oral arguments on the instant petitions held on
November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word
"initiate" as it twice appears in Article XI (3) and (5) of the
88
understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies
of which have been furnished the Members of this body. This
is borne out of my experience as a member of the Committee
on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the
impeachment proceedings starting with initiation, action of
the Speaker committee action, calendaring of report, voting
on the report, transmittal referral to the Senate, trial and
judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted
by Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles
of Impeachment on the floor. The procedure, as I have
pointed out earlier, was that the initiation starts with the
filing of the complaint. And what is actually done on the floor
is that the committee resolution containing the Articles of
Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on
the floor. If we only have time, I could cite examples in the
case of the impeachment proceedings of President Richard
Nixon wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of
Impeachment to the body, and it was the body who approved
the resolution. It is not the body which initiates it. It only
approves or disapproves the resolution. So, on that score,
probably the Committee on Style could help in rearranging
these words because we have to be very technical about this.
I have been bringing with me The Rules of the House of
89
States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)
refers
to
two
objects,
"impeachment proceeding."
"impeachment
case"
and
90
Father Bernas further explains: The "impeachment
proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of
the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the
resolution passed on to it by the Committee, because
something prior to that has already been done. The action of
the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or
begins, when a verified complaint is filed and referred to the
Committee on Justice for action. This is the initiating step
which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in
its ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the
Members of the House shall be necessary to initiate
impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does
not initiate impeachment proceeding but rather the filing of a
complaint does.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same
official more than once within a period of one year," it means
that no second verified complaint may be accepted and
referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to
begin. He reminds that the Constitution is ratified by the
people, both ordinary and sophisticated, as they understand
it; and that ordinary people read ordinary meaning into
ordinary words and not abstruse meaning, they ratify words
as they understand it and not as sophisticated lawyers
confuse it.
91
In his amicus curiae brief, Justice Hugo Gutierrez posits that
this Court could not use contemporaneous construction as an
aid in the interpretation of Sec.3 (5) of Article XI, citing Vera
v. Avelino147 wherein this Court stated that "their personal
opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different
footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this
Court likened the former members of the Constitutional
Convention to actors who are so absorbed in their emotional
roles that intelligent spectators may know more about the
real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the
present petitions. There are at present only two members of
this Court who participated in the 1986 Constitutional
Commission Chief Justice Davide and Justice Adolf Azcuna.
Chief Justice Davide has not taken part in these proceedings
for obvious reasons. Moreover, this Court has not simply
relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of
the deliberations and proceedings thereof.
Respondent House of Representatives counters that under
Section 3 (8) of Article XI, it is clear and unequivocal that it
and only it has the power to make and interpret its rules
governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to promulgate
its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out
the purpose of this section." Clearly, its power to promulgate
its rules on impeachment is limited by the phrase "to
effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively
92
and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of
the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151
declared that where the construction to be given to a rule
affects persons other than members of the Legislature, the
question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153
Justice Vicente Mendoza, speaking for this Court, held that
while the Constitution empowers each house to determine its
rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between
the mode or method of proceeding established by the rule
and the result which is sought to be attained. It is only within
these limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo
v. De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed
that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress,
viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States,
the principle of separation of power is no longer an
impregnable impediment against the interposition of judicial
power on cases involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144
US 1) as a window to view the issues before the Court. It is in
Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review
congressional rules. It held:
"x x x
93
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental
right; and (3) its method had a reasonable relationship with
the result sought to be attained. By examining Rule XV, the
Court did not allow its jurisdiction to be defeated by the mere
invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason
for courts to categorically reject the political question
defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution was intentionally
cobbled to empower courts "x x x to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and
was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of
state power were shielded from judicial scrutiny by the
misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the
judiciary vis--vis the Executive and the Legislative
departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to
this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down
any act of a branch or instrumentality of government or any
94
not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power
or if we wield it with timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if
not defy, orders of our courts. In Tolentino, I endorsed the
view of former Senator Salonga that this novel provision
stretching the latitude of judicial power is distinctly Filipino
and its interpretation should not be depreciated by undue
reliance on inapplicable foreign jurisprudence. In resolving
the case at bar, the lessons of our own history should provide
us the light and not the experience of foreigners.157 (Italics
in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to
the instant petitions. Here, the third parties alleging the
violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on
Nixon v. US158 as basis for arguing that this Court may not
decide on the constitutionality of Sections 16 and 17 of the
House Impeachment Rules. As already observed, the U.S.
Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment."
It adds nothing more. It gives no clue whatsoever as to how
this "sole power" is to be exercised. No limitation whatsoever
is given. Thus, the US Supreme Court concluded that there
was a textually demonstrable constitutional commitment of a
constitutional power to the House of Representatives. This
reasoning does not hold with regard to impeachment power
of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be
exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment
proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the
95
the past two weeks have proven to be an exasperating,
mentally and emotionally exhausting experience. Both sides
have fought bitterly a dialectical struggle to articulate what
they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators,
whether for or against the impeachment of the Chief Justice,
took to the streets armed with their familiar slogans and
chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe
and denominations of faith offered suggestions for a return
to a state of normalcy in the official relations of the
governmental branches affected to obviate any perceived
resulting instability upon areas of national life.
Through all these and as early as the time when the Articles
of Impeachment had been constituted, this Court was
specifically asked, told, urged and argued to take no action of
any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint
against the subject respondent public official. When the
present petitions were knocking so to speak at the doorsteps
of this Court, the same clamor for non-interference was made
through what are now the arguments of "lack of jurisdiction,"
"non-justiciability," and "judicial self-restraint" aimed at
halting the Court from any move that may have a bearing on
the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance
as far as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the
Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty
of judicial review over an issue whose resolution precisely
called for the construction or interpretation of a provision of
the fundamental law of the land. What lies in here is an issue
of a genuine constitutional material which only this Court can
properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or
96
these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact
that the fundamental issue is not him but the validity of a
government branch's official act as tested by the limits set by
the Constitution? Of course, there are rules on the inhibition
of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution
now from the suit at bar is to regard the Supreme Court as
likely incapable of impartiality when one of its members is a
party to a case, which is simply a non sequitur.
SO ORDERED.
97
Vinuya v. Romulo, GR. 162230, April 28, 2010
DECISION
Factual Antecedents
Issues
Petitioners are all members of the MALAYA LOLAS, a nonstock, non-profit organization registered with the Securities
98
Petitioners arguments
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with Japan is
void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,3 sexual slavery,4 and
torture.5 They allege that the prohibition against these
international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of
Filipina comfort women and failing to espouse their
complaints against Japan, the Philippine government is in
breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the
Philippine governments acceptance of the "apologies" made
by Japan as well as funds from the Asian Womens Fund
(AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and
its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the
Allied Powers for the damage and suffering caused by it
during the war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for
all such damage and suffering and at the present time meet
its other obligations.
b) Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied
99
and even broken bones inflicted on the women by soldiers.
Document1zzF48331552898
Fewer than 30% of the women survived the war.17 Their
agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of
shame, never returned home.18
Lawsuits
100
(a) Acknowledge that the system of comfort stations set up
by the Japanese Imperial Army during the Second World War
was a violation of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese
military sexual slavery according to principles outlined by the
Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of
grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims
are of a very advanced age;
(c) Make a full disclosure of documents and materials in its
possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second
World War;
(d) Make a public apology in writing to individual women who
have come forward and can be substantiated as women
victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational
curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators
involved in the recruitment and institutionalization of comfort
stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN SubCommission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on
June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices
During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during the
Second World War,30 which contained the following findings:
101
The UN, since then, has not taken any official action directing
Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was
a "people's tribunal" established by a number of Asian
women and human rights organizations, supported by an
international coalition of non-governmental organizations.31
First proposed in 1998, the WIWCT convened in Tokyo in 2000
in order to "adjudicate Japan's military sexual violence, in
particular the enslavement of comfort women, to bring those
responsible for it to justice, and to end the ongoing cycle of
impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the
"tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of
women.32 It bears stressing, however, that although the
tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of
California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July
30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the
Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion
102
The Foreign Affairs Committee of the United Kingdoms
Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue
of comfort women in order to ensure cooperation between
Japan and Korea.
Statements of Remorse made by representatives of the
Japanese government
Various officials of the Government of Japan have issued the
following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in
1993:
The Government of Japan has been conducting a study on
the issue of wartime "comfort women" since December 1991.
I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations
were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the
request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The
Government study has revealed that in many cases they
were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were
transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those days,
103
As Prime Minister of Japan, I thus extend anew my most
sincere apologies and remorse to all the women who endured
immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse, should
face up squarely to its past history and accurately convey it
to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995
and 2005
Solemnly reflecting upon the many instances of colonial rule
and acts of aggression that occurred in modern world history,
and recognizing that Japan carried out such acts in the past
and inflicted suffering on the people of other countries,
especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives
adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister
Shinzo Abe
I have talked about this matter in the Diet sessions last year,
and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has
not changed even slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime
Minister and it is as stated in the statement by the Chief
Cabinet Secretary Kono. (Excerpt from Remarks by Prime
104
AWF was to show atonement of the Japanese people through
expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate
Japans strong respect for women.38
The AWF announced three programs for former comfort
women who applied for assistance: (1) an atonement fund
paying 2 million (approximately $20,000) to each woman;
(2) medical and welfare support programs, paying 2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter of
apology from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese
government and private donations from the Japanese people.
As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South Korea,
Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4
million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government
signed a Memorandum of Understanding for medical and
welfare support programs for former comfort women. Over
the next five years, these were implemented by the
Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse
of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department
has the exclusive prerogative to determine whether to
espouse petitioners claims against Japan.
105
advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.43
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority
to
construe
or
invalidate
treaties
and
executive
agreements.44 However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of
its nationals for reparations against Japan in the Treaty of
Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the
said determination by the Executive Department via the
instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45
the US Supreme Court held that "[t]he President is the sole
organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our
international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims
achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the
international field must often accord to the President a
degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has
his confidential sources of information. He has his agents in
the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary46 and Pimentel v.
106
x x x [g]overnments have dealt with x x x private claims as
their own, treating them as national assets, and as counters,
`chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts
with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set
off against concessions in the other, or against larger political
considerations unrelated to debts.49
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying
private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a British
subject to recover a debt confiscated by the Commonwealth
of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the
war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government,
or people of either, during the war, are buried in oblivion; and
all those things are implied by the very treaty of peace; and
therefore not necessary to be expressed. Hence it follows,
that the restitution of, or compensation for, British property
confiscated, or extinguished, during the war, by any of the
United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the
treaty, by the British government, much less by her subjects
in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is
certainly nothing new. For instance, in Dames & Moore v.
Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding
claims by nationals of one country against the government of
another country are "sources of friction" between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
107
consolidated case in the Northern District of California,53 the
court dismissed the lawsuits filed, relying on the 1951 peace
treaty with Japan,54 because of the following policy
considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a
lasting peace:
Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a
Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of
1948, MacArthur expressed the view that "[t]he use of
reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all
108
the dictum of the Permanent Court of International Justice
(PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the
present dispute originates in an injury to a private interest,
which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is
sole claimant.56
Since the exercise of diplomatic protection is the right of the
State, reliance on the right is within the absolute discretion of
states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other
than the legal merits of the particular claim.57 As clearly
stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf
it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the
national a right to demand the performance of that
obligation, and clothe the right with corresponding
sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the
position internationally.58 (Emphasis supplied)
109
by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely
because of states reluctance to directly prosecute claims
against another state, recent developments support the
modern trend to empower individuals to directly participate
in suits against perpetrators of international crimes.66
Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against
humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present
existence of an obligation to prosecute international
crimes.67 Of course a customary duty of prosecution is ideal,
but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is
widespread, it is in the practice of granting amnesties,
immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity."68
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. The concept was recognized by the ICJ in
Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as
a whole, and those arising vis--vis another State in the field
of diplomatic protection. By their very nature, the former are
the concern of all States. In view of the importance of the
110
the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus
cogens, the ILC concluded ruefully in 1963 that "there is not
as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of
jus cogens."75 In a commentary accompanying the draft
convention, the ILC indicated that "the prudent course seems
to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international
tribunals."76 Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its
substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those
that have offended them before appropriate fora. Needless to
say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only
the power to urge and exhort the Executive Department to
take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
111
G.R. No. 173034
October 9, 2007
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the
best nourishment for an infant is mother's milk. There is
nothing greater than for a mother to nurture her beloved
child straight from her bosom. The ideal is, of course, for
each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of
the Rules of Court, seeking to nullify Administrative Order
(A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known
as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains
provisions that are not constitutional and go beyond the law
it is supposed to implement.
Named as respondents are the Health Secretary,
Undersecretaries,
and
Assistant
Secretaries
of
the
Department of Health (DOH). For purposes of herein petition,
the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as
officials of said executive agency.1
112
After the Comment and Reply had been filed, the Court set
the case for oral arguments on June 19, 2007. The Court
issued an Advisory (Guidance for Oral Arguments) dated June
5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR) issued
by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of
Executive Order No. 51 (Milk Code);
_____________
1 (1) United Nations Convention on the Rights of the Child;
(2) the WHO and Unicef "2002 Global Strategy on Infant and
Young Child Feeding;" and (3) various World Health Assembly
(WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
113
any of its agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has
an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the
appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered
by its members which are directly affected by the RIRR.
Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be
remiss in its duties if it fails to act on governmental action
that would affect any of its industry members, no matter how
few or numerous they are. Hence, petitioner, whose legal
identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be
benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of
the land.
Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and
expanding the coverage of said law. The defense of the DOH
is that the RIRR implements not only the Milk Code but also
various international instruments10 regarding infant and
young child nutrition. It is respondents' position that said
international instruments are deemed part of the law of the
land and therefore the DOH may implement them through
the RIRR.
The Court notes that the following international instruments
invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International
Covenant on Economic, Social and Cultural Rights; and (3)
the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms
that steps must be taken by State Parties to diminish infant
114
The Milk Code is almost a verbatim reproduction of the
ICMBS, but it is well to emphasize at this point that the Code
did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the
general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the
Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987
Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument
of national policy, 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. (Emphasis supplied)
115
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.22
(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated
into our domestic system.23
WHA Resolutions have not been embodied in any local
legislation. Have they attained the status of customary law
and should they then be deemed incorporated as part of the
law of the land?
The World Health Organization (WHO) is one of the
international specialized agencies allied with the United
Nations (UN) by virtue of Article 57,24 in relation to Article
6325 of the UN Charter. Under the 1946 WHO Constitution, it
is the WHA which determines the policies of the WHO,26 and
has the power to adopt regulations concerning "advertising
and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter
within the competence of the Organization."28 The legal
effect of its regulations, as opposed to recommendations, is
quite different.
116
On the other hand, under Article 23, recommendations of the
WHA do not come into force for members, in the same way
that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the
WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter
within the competence of the Organization. (Emphasis
supplied)
The absence of a provision in Article 23 of any mechanism by
which the recommendation would come into force for
member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber,
stated that WHA recommendations are generally not binding,
but they "carry moral and political weight, as they constitute
the judgment on a health issue of the collective membership
of the highest international body in the field of health."29
Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the
sense of Article 23 of the Constitution, the International Code
of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the
fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the
text of a resolution by which it would adopt the code in the
form of a recommendation rather than a regulation. x x x
(Emphasis supplied)
117
promote and protect intellectual property worldwide, has
resorted to soft law as a rapid means of norm creation, in
order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international
organizations which have resorted to soft law include the
International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex
Alimentarius).40
WHO has resorted to soft law. This was most evident at the
time of the Severe Acute Respiratory Syndrome (SARS) and
Avian flu outbreaks.
Although the IHR Resolution does not create new
international law binding on WHO member states, it provides
an excellent example of the power of "soft law" in
international relations. International lawyers typically
distinguish binding rules of international law-"hard law"-from
non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence
generated many soft law norms, creating a "soft law regime"
in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant
steps in laying the political groundwork for improved
international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative
duty to cooperate fully with other countries and with WHO in
connection with infectious disease surveillance and response
to outbreaks.
This duty is neither binding nor enforceable, but, in the wake
of the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x
if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and
consistent state practice on infectious disease surveillance
and outbreak response, perhaps crystallizing eventually into
118
Second, the Court will determine whether the DOH may
implement the provisions of the WHA Resolutions by virtue of
its powers and functions under the Revised Administrative
Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative
Code of 1987 provides that the DOH shall define the national
health policy and implement a national health plan within the
framework of the government's general policies and plans,
and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on
advertising and other forms of promotion of breastmilk
substitutes provided in some WHA Resolutions has been
adopted as part of the national health policy.
Respondents submit that the national policy on infant and
young child feeding is embodied in A.O. No. 2005-0014,
dated May 23, 2005. Basically, the Administrative Order
declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six
months, extended breastfeeding up to two years and beyond;
(2) appropriate complementary feeding, which is to start at
age six months; (3) micronutrient supplementation; (4)
universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult
circumstances. Indeed, the primacy of breastfeeding for
children is emphasized as a national health policy. However,
nowhere in A.O. No. 2005-0014 is it declared that as part of
such health policy, the advertisement or promotion of
breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total
ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not
contain a total ban on the advertising and promotion of
119
Section 2. Purpose These Revised Rules and Regulations are
hereby promulgated to ensure the provision of safe and
adequate nutrition for infants and young children by the
promotion, protection and support of breastfeeding and by
ensuring the proper use of breastmilk substitutes, breastmilk
supplements and related products when these are medically
indicated and only when necessary, on the basis of adequate
information and through appropriate marketing and
distribution.
Section 5(ff). "Young Child" means a person from the age of
more than twelve (12) months up to the age of three (3)
years (36 months).
2. The Milk Code recognizes that infant formula may be a
proper and possible substitute for breastmilk in certain
instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no
substitute nor replacement for breastmilk":
MILK CODE
RIRR
WHEREAS, in order to ensure that safe and adequate
nutrition for infants is provided, there is a need to protect
and promote breastfeeding and to inform the public about
the proper use of breastmilk substitutes and supplements
and related products through adequate, consistent and
objective information and appropriate regulation of the
marketing and distribution of the said substitutes,
supplements and related products;
120
Section 11. Prohibition No advertising, promotions,
sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or
otherwise
exaggerate
breastmilk
substitutes
and/or
replacements, as well as related products covered within the
scope of this Code.
Section 16. All health and nutrition claims for products within
the scope of the Code are absolutely prohibited. For this
purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child
and other like phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not
found in the Milk Code:
MILK CODE
RIRR
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily
become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.
121
Section 26. Content Each container/label shall contain such
message, in both Filipino and English languages, and which
message cannot be readily separated therefrom, relative the
following points:
(a) The words or phrase "Important Notice" or "Government
Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for breastmilk;
(d) A statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use;
(e) Instructions for appropriate prepara-tion, and a warning
against the health hazards of inappropriate preparation; and
(f) The health hazards of unnecessary or improper use of
infant formula and other related products including
information that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used
appropriately.
5. The Milk Code allows dissemination of information on
infant formula to health professionals; the RIRR totally
prohibits such activity:
MILK CODE
RIRR
MILK CODE
RIRR
SECTION 8. Health Workers
122
(e) Manufacturers and distributors of products within the
scope of this Code may assist in the research, scholarships
and continuing education, of health professionals, in
accordance with the rules and regulations promulgated by
the Ministry of Health.
Section 4. Declaration of Principles
The following are the underlying principles from which the
revised rules and regulations are premised upon:
i. Milk companies, and their representatives, should not form
part of any policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or representatives
of products covered by the Code shall be allowed to conduct
or be involved in any activity on breastfeeding promotion,
education and production of Information, Education and
Communication (IEC) materials on breastfeeding, holding of
or participating as speakers in classes or seminars for women
and children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 32. Primary Responsibility of Health Workers - It is
the primary responsibility of the health workers to promote,
protect and support breastfeeding and appropriate infant and
young child feeding. Part of this responsibility is to
continuously update their knowledge and skills on
breastfeeding. No assistance, support, logistics or training
from milk companies shall be permitted.
RIRR
SECTION 6. The General Public and Mothers.
(f) Nothing herein contained shall prevent donations from
manufacturers and distributors of products within the scope
of this Code upon request by or with the approval of the
Ministry of Health.
Section 51. Donations Within the Scope of This Code Donations of products, materials, defined and covered under
the Milk Code and these implementing rules and regulations,
shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not Covered
by this Code. - Donations of products, equipments, and the
like, not otherwise falling within the scope of this Code or
these Rules, given by milk companies and their agents,
representatives, whether in kind or in cash, may only be
coursed through the Inter Agency Committee (IAC), which
shall determine whether such donation be accepted or
otherwise.
8. The RIRR provides for administrative sanctions not
imposed by the Milk Code.
MILK CODE
RIRR
123
juridical or natural, found to have violated the provisions of
the Code and its implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a minimum of Ten
Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the violation,
including the recall of the offending product;
c) 3rd violation Administrative Fine of a minimum of Sixty
Thousand (P60,000.00) to One Hundred Fifty Thousand
(P150,000.00) Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall of the
offending product, and suspension of the Certificate of
Product Registration (CPR);
d) 4th violation Administrative Fine of a minimum of Two
Hundred
Thousand
(P200,000.00) to
Five
Hundred
(P500,000.00) Thousand Pesos, depending on the gravity and
extent of the violation; and in addition thereto, the recall of
the product, revocation of the CPR, suspension of the License
to Operate (LTO) for one year;
e) 5th and succeeding repeated violations Administrative
Fine of One Million (P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR, revocation of the
License to Operate (LTO) of the company concerned,
including the blacklisting of the company to be furnished the
Department of Budget and Management (DBM) and the
Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred
(P2,500.00) Pesos per day shall be made for every day the
violation continues after having received the order from the
IAC or other such appropriate body, notifying and penalizing
the company for the infraction.
For purposes of determining whether or not there is
"repeated" violation, each product violation belonging or
124
person falling within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is
defined under Section 4(a) as "any food being marketed or
otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose." This
section conspicuously lacks reference to any particular agegroup of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12
months. In other words, breastmilk substitutes may also be
intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of
children more than 12 months old.
Evidently, as long as what is being marketed falls within the
scope of the Milk Code as provided in Section 3, then it can
be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242
and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike
the Milk Code, does not recognize that breastmilk substitutes
may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions
thereof, must be considered and construed together. As held
in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and
isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically
indicated and only when necessary, the use of breastmilk
125
Seventy years later, the 1987 Administrative Code tasked
respondent DOH to carry out the state policy pronounced
under Section 15, Article II of the 1987 Constitution, which is
"to protect and promote the right to health of the people and
instill health consciousness among them."52 To that end, it
was granted under Section 3 of the Administrative Code the
power to "(6) propagate health information and educate the
population on important health, medical and environmental
matters which have health implications."53
When it comes to information regarding nutrition of infants
and young children, however, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent
and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products;
and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for
the implementation and enforcement of the provisions of this
Code. For this purpose, the Ministry of Health shall have the
following powers and functions:
(1) To promulgate such rules and regulations as are
necessary or proper for the implementation of this Code and
the accomplishment of its purposes and objectives.
xxxx
xxxx
126
this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms
shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the
information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code54
to ensure that the information that would reach pregnant
women, mothers of infants, and health professionals and
workers in the health care system is restricted to scientific
and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the
Milk Code to control information regarding breastmilk vis-avis breastmilk substitutes is not absolute as the power to
control does not encompass the power to absolutely prohibit
the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that
unequivocally indicate that the control over information given
to the DOH is not absolute and that absolute prohibition is
not contemplated by the Code:
127
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the
RIRR contain some labeling requirements, specifically: a) that
there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered
infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately. Section 1657 of
the RIRR prohibits all health and nutrition claims for products
within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant
and young child.
These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx
SECTION 5. x x x
xxxx
128
hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes. (Emphasis supplied)
The label of a product contains information about said
product intended for the buyers thereof. The buyers of
breastmilk substitutes are mothers of infants, and Section 26
of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula
and other related products when these are prepared and
used inappropriately.
Petitioners counsel has admitted during the hearing on June
19, 2007 that formula milk is prone to contaminations and
there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR
for the label to contain the message regarding health hazards
including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk
Code.
The authority of DOH to control information regarding
breastmilk vis-a-vis breastmilk substitutes and supplements
and related products cannot be questioned. It is its
intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
shall
have
the
following
powers
and
129
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or
otherwise
exaggerate
breastmilk
substitutes
and/or
replacements, as well as related products covered within the
scope of this Code.
prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with
the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are
prohibited.
The DOH, through its co-respondents, evidently arrogated to
itself not only the regulatory authority given to the IAC but
also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the
authority of IAC, and repeatedly insisted, during the oral
arguments on June 19, 2007, that the prohibition under
Section 11 is not actually operational, viz:
xxxx
130
regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
xxxx
131
under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the
rules and regulations must be "pursuant to the applicable
standards provided for in this Code." Said standards are set
forth in Sections 5(b), 8(b), and 10 of the Code, which, at the
risk of being repetitious, and for easy reference, are quoted
hereunder:
xxxx
xxxx
132
by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate
into operational terms the standards set forth in Sections 5,
8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly
provided for Section 13 in the RIRR which reads as follows:
133
provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking
bodies on breastfeeding. Therefore, the RIRR's prohibition on
milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord
with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the
RIRR prohibits milk companies from giving reasearch
assistance and continuing education to health professionals.
Section 2270 of the RIRR does not pertain to research
assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22
of the RIRR prohibits milk companies from giving assistance
for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision
must be struck down.
It is Sections 971 and 1072 of the RIRR which govern
research assistance. Said sections of the RIRR provide that
research assistance for health workers and researchers may
be allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine
how such research or educational assistance may be given
by milk companies or under what conditions health workers
may accept the assistance. Thus, Sections 9 and 10 of the
RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely
in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits
milk companies from giving assistance, support, logistics or
training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the
Milk Code, which provides that manufacturers and
distributors of breastmilk substitutes may assist in
134
and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus,
the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc.,77 the Court upheld the Department of
Energy (DOE) Circular No. 2000-06-10 implementing Batas
Pambansa (B.P.) Blg. 33. The circular provided for fines for
the commission of prohibited acts. The Court found that
nothing in the circular contravened the law because the DOE
was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to
impose fines or penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or
impose administrative fines. Thus, without any express grant
of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again
exceeded its authority by providing for such fines or
sanctions in Section 46 of the RIRR. Said provision is,
therefore, null and void.
The DOH is not left without any means to enforce its rules
and regulations. Section 12(b) (3) of the Milk Code authorizes
the DOH to "cause the prosecution of the violators of this
Code and other pertinent laws on products covered by this
Code." Section 13 of the Milk Code provides for the penalties
to be imposed on violators of the provision of the Milk Code
or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the
rules and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Thirty Thousand
Pesos (P30,000.00) or both. Should the offense be committed
by a juridical person, the chairman of the Board of Directors,
135
agencies that are inconsistent
repealed or modified.
therewith
are
declared
136
(j) "Manufacturer" means a corporation or other entity in the
public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.
Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court
sees no harm in the RIRR providing for just one term to
encompass both entities. The definition of "milk company" in
the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are
practically the same.
The Court is not convinced that the definition of "milk
company" provided in the RIRR would bring about any
change in the treatment or regulation of "distributors" and
"manufacturers" of breastmilk substitutes, as defined under
the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of
the RIRR are in consonance with the objective, purpose and
intent of the Milk Code, constituting reasonable regulation of
an industry which affects public health and welfare and, as
such, the rest of the RIRR do not constitute illegal restraint of
trade nor are they violative of the due process clause of the
Constitution.
SO ORDERED.
137
Oposa v. Factoran, GR 101083, July 30, 1993
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and
"arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which
was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners,
are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and
non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary,
the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners. 1 The complaint 2
was instituted as a taxpayers' class suit 3 and alleges that
the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use
and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The minors
further asseverate that they "represent their generation as
well as generations yet unborn." 4 Consequently, it is prayed
for that judgment be rendered:
138
rare and varied flora and fauna, (e) the disturbance and
dislocation
of
cultural
communities,
including
the
disappearance of the Filipino's indigenous cultures, (f) the
siltation of rivers and seabeds and consequential destruction
of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and
agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic
changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable
of unquestionable demonstration that the same may be
submitted
as
a
matter
of
judicial
notice.
This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and
film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four
per cent (4.0%) of the country's land area.
139
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits
in the country.
140
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss. 7 In the said order,
not only was the defendant's claim that the complaint
states no cause of action against him and that it raises a
political question sustained, the respondent Judge further
ruled that the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for
certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the
ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have
also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment
based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II
of the 1987 Constitution recognizing the right of the people
to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and selfperpetuation embodied in natural law. Petitioners likewise
rely on the respondent's correlative obligation per Section 4
of E.O. No. 192, to safeguard the people's right to a healthful
environment.
141
requisite hearing would be violative of the requirements of
due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No. 90777 as a class suit. The original defendant and the present
respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise
declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of
a valid class suit under Section 12, Rule 3 of the Revised
Rules of Court are present both in the said civil case and in
the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in
ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations. 10
Needless to say, every generation has a responsibility to the
142
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the
plaintiffs failed to allege with sufficient definiteness a specific
legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal
right the right to a balanced and healthful ecology which,
for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for
in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly
143
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the country's
environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement
of the quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is
also the policy of the state to recognize and apply a true
value system including social and environmental cost
implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV,
Book IV of the Administrative Code of 1987, 15 specifically in
Section 1 thereof which reads:
144
It may, however, be recalled that even before the ratification
of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality
that is conducive to a life of dignity and well-being." 16 As its
goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave
flesh to the said policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear as
the DENR's duty under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the
said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
145
emphasized that the political question doctrine is no longer,
the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states
that:
146
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property or
a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court
held:
cannot be invoked.
In the second place, even if it is to be assumed that the same
are contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless,
granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such
as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the
right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In
Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General, 30 to wit:
147
Under our form of government the use of property and the
making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police
power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the
non-impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet
existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition
is hereby GRANTED, and the challenged Order of respondent
Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their
complaint to implead as defendants the holders or grantees
of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
148
G.R. Nos. 171947-48
METROPOLITAN
MANILA
DEVELOPMENT
AUTHORITY,
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1
DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE,
DEPARTMENT
OF
PUBLIC
WORKS
AND
HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE
COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and
joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL
SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO,
MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN,
VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and
JAIME AGUSTIN R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of
climate change, has of late gained the attention of the
international community. Media have finally trained their
sights on the ill effects of pollution, the destruction of forests
and other critical habitats, oil spills, and the unabated
improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by
itself.2 But amidst hard evidence and clear signs of a climate
crisis that need bold action, the voice of cynicism, naysayers,
and procrastinators can still be heard.
This case turns on government agencies and their officers
who, by the nature of their respective offices or by direct
statutory command, are tasked to protect and preserve, at
the first instance, our internal waters, rivers, shores, and
149
In their individual causes of action, respondents alleged that
the continued neglect of petitioners in abating the pollution
of the Manila Bay constitutes a violation of, among others:
(1) Respondents constitutional right to life, health, and a
balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
150
Defendant LWUA, to see to it that the water districts under its
wings, provide, construct and operate sewage facilities for
the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up
Manila Bay, to install, operate and maintain waste facilities to
rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not
only of ship-generated wastes but also of other solid and
liquid wastes from docking vessels that contribute to the
pollution of the bay.
151
By a Decision6 of September 28, 2005, the CA denied
petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require
petitioners to do tasks outside of their usual basic functions
under existing laws.7
Petitioners are now before this Court praying for the
allowance of their Rule 45 petition on the following ground
and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT
HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E.,
IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT
SECTION 20 OF [PD] 1152 REQUIRES CONCERNED
GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS
SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE
CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO] NOT
COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS
NOT A MINISTERIAL ACT OF PETITIONERS THAT CAN BE
COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and
20 of PD 1152 under the headings, Upgrading of Water
Quality and Clean-up Operations, envisage a cleanup in
general or are they limited only to the cleanup of specific
pollution incidents? And second, can petitioners be
compelled by mandamus to clean up and rehabilitate the
Manila Bay?
152
solid and liquid waste disposal; in other words, it is the
MMDAs ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to
perform their duties as defined by law, on one hand, and how
they are to carry out such duties, on the other, are two
different concepts. While the implementation of the MMDAs
mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law
exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society
v. Atienza11 in which the Court directed the City of Manila to
enforce, as a matter of ministerial duty, its Ordinance No.
8027 directing the three big local oil players to cease and
desist from operating their business in the so-called
"Pandacan Terminals" within six months from the effectivity
of the ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and
appropriate sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage disposal
systems is ministerial, its duty being a statutory imposition.
The MMDAs duty in this regard is spelled out in Sec. 3(c) of
Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste
disposal services to include:
Solid waste disposal and management which include
formulation and implementation of policies, standards,
programs and projects for proper and sanitary waste
disposal. It shall likewise include the establishment and
operation of sanitary land fill and related facilities and the
implementation of other alternative programs intended to
reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the
Ecological Solid Waste Management Act (RA 9003) which
prescribes the minimum criteria for the establishment of
sanitary landfills and Sec. 42 which provides the minimum
153
determine[s] its location, magnitude, extent, severity, causes
and effects and other pertinent information on pollution, and
[takes] measures, using available methods and technologies,
to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a
National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water
Quality Management Area Action Plan which is nationwide in
scope covering the Manila Bay and adjoining areas. Sec. 19
of RA 9275 provides:
(3) The LWUA under PD 198 has the power of supervision and
control over local water districts. It can prescribe the
minimum standards and regulations for the operations of
these districts and shall monitor and evaluate local water
standards. The LWUA can direct these districts to construct,
operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached
agency of the DPWH, is tasked with providing sewerage and
sanitation facilities, inclusive of the setting up of efficient and
safe collection, treatment, and sewage disposal system in the
154
different parts of the country.19 In relation to the instant
petition, the LWUA is mandated to provide sewerage and
sanitation facilities in Laguna, Cavite, Bulacan, Pampanga,
and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),20 is designated as the
agency tasked to promulgate and enforce all laws and
issuances respecting the conservation and proper utilization
of agricultural and fishery resources. Furthermore, the DA,
under the Philippine Fisheries Code of 1998 (RA 8550), is, in
coordination with local government units (LGUs) and other
concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and
aquatic resources in Philippine waters are judiciously utilized
and managed on a sustainable basis.21 Likewise under RA
9275, the DA is charged with coordinating with the PCG and
DENR for the enforcement of water quality standards in
marine waters.22 More specifically, its Bureau of Fisheries
and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275
shall primarily be responsible for the prevention and control
of water pollution for the development, management, and
conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of
the national government, is tasked under EO 29223 to
provide integrated planning, design, and construction
services for, among others, flood control and water resource
development systems in accordance
with
national
development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec.
3(d), RA 7924 to perform metro-wide services relating to
"flood control and sewerage management which include the
formulation and implementation of policies, standards,
programs and projects for an integrated flood control,
drainage and sewerage system."
155
c. deposit x x x material of any kind in any place on the bank
of any navigable water or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed
into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of
pollution of such water.
(7) When RA 6975 or the Department of the Interior and
Local Government (DILG) Act of 1990 was signed into law on
December 13, 1990, the PNP Maritime Group was tasked to
"perform all police functions over the Philippine territorial
waters and rivers." Under Sec. 86, RA 6975, the police
functions of the PCG shall be taken over by the PNP when the
latter acquires the capability to perform such functions. Since
the PNP Maritime Group has not yet attained the capability to
assume and perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall coordinate
with regard to the enforcement of laws, rules, and regulations
governing marine pollution within the territorial waters of the
Philippines. This was made clear in Sec. 124, RA 8550 or the
Philippine Fisheries Code of 1998, in which both the PCG and
PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated
"to establish, develop, regulate, manage and operate a
rationalized national port system in support of trade and
national development."26 Moreover, Sec. 6-c of EO 513
states that the PPA has police authority within the ports
administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the
Bureau of Customs and other law enforcement bodies within
the area. Such police authority shall include the following:
xxxx
Under Sec. 28 of the Urban Development and Housing Act of
1992 (RA 7279), eviction or demolition may be allowed
"when persons or entities occupy danger areas such as
156
esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as
sidewalks, roads, parks and playgrounds." The MMDA, as lead
agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures,
constructions, and other encroachments built in breach of RA
7279 and other pertinent laws along the rivers, waterways,
and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga,
Cavite, and Laguna that discharge wastewater directly or
eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and removal of
such structures, constructions, and other encroachments
built in violation of RA 7279 and other applicable laws in
coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD
1067 (the Water Code), is tasked to promulgate rules and
regulations for the establishment of waste disposal areas that
affect the source of a water supply or a reservoir for domestic
or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned
agencies, shall formulate guidelines and standards for the
collection, treatment, and disposal of sewage and the
establishment and operation of a centralized sewage
treatment system. In areas not considered as highly
urbanized cities, septage or a mix sewerage-septage
management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of
Sanitation of the Philippines, and Sec. 5.1.131 of Chapter XVII
of its implementing rules, the DOH is also ordered to ensure
the regulation and monitoring of the proper disposal of
wastes by private sludge companies through the strict
enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and
disposal before these companies are issued their
environmental sanitation permit.
157
Thus, the DBM shall then endeavor to provide an adequate
budget to attain the noble objectives of RA 9275 in line with
the countrys development objectives.
All told, the aforementioned enabling laws and issuances are
in themselves clear, categorical, and complete as to what are
the obligations and mandate of each agency/petitioner under
the law. We need not belabor the issue that their tasks
include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the
Environment Code encompass the cleanup of water pollution
in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of
water has deteriorated to a degree where its state will
adversely affect its best usage, the government agencies
concerned shall take such measures as may be necessary to
upgrade the quality of such water to meet the prescribed
water quality standards.
Section 20. Clean-up Operations.It shall be the
responsibility of the polluter to contain, remove and clean-up
water pollution incidents at his own expense. In case of his
failure to do so, the government agencies concerned shall
undertake containment, removal and clean-up operations
and expenses incurred in said operations shall be charged
against the persons and/or entities responsible for such
pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16
on the subject, o, amended the counterpart provision (Sec.
20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.
to Sec. 20 of the
than real since the
to this case, merely
as lead agency in the
158
h. Accidental Spills [refer] to spills of oil or other hazardous
substances in water that result from accidents such as
collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD
1152 merely direct the government agencies concerned to
undertake containment, removal, and cleaning operations of
a specific polluted portion or portions of the body of water
concerned. They maintain that the application of said Sec. 20
is limited only to "water pollution incidents," which are
situations that presuppose the occurrence of specific,
isolated pollution events requiring the corresponding
containment, removal, and cleaning operations. Pushing the
point further, they argue that the aforequoted Sec. 62(g)
requires "cleanup operations" to restore the body of water to
pre-spill condition, which means that there must have been a
specific incident of either intentional or accidental spillage of
oil or other hazardous substances, as mentioned in Sec.
62(h).
As a counterpoint, respondents argue that petitioners
erroneously read Sec. 62(g) as delimiting the application of
Sec. 20 to the containment, removal, and cleanup operations
for accidental spills only. Contrary to petitioners posture,
respondents assert that Sec. 62(g), in fact, even expanded
the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution
accumulating from the day-to-day operations of businesses
around the Manila Bay and other sources of pollution that
slowly accumulated in the bay. Respondents, however,
emphasize that Sec. 62(g), far from being a delimiting
provision, in fact even enlarged the operational scope of Sec.
20, by including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation to Sec.
20 of PD 1152.
To respondents, petitioners parochial view on environmental
issues, coupled with their narrow reading of their respective
mandated roles, has contributed to the worsening water
quality of the Manila Bay. Assuming, respondents assert, that
159
of PD 1152 is at once valid as it is practical. The appellate
court wrote: "PD 1152 aims to introduce a comprehensive
program of environmental protection and management. This
is better served by making Secs. 17 & 20 of general
application rather than limiting them to specific pollution
incidents."35
Granting arguendo that petitioners position thus described
vis--vis the implementation of Sec. 20 is correct, they seem
to have overlooked the fact that the pollution of the Manila
Bay is of such magnitude and scope that it is well-nigh
impossible to draw the line between a specific and a general
pollution incident. And such impossibility extends to
pinpointing with reasonable certainty who the polluters are.
We note that Sec. 20 of PD 1152 mentions "water pollution
incidents" which may be caused by polluters in the waters of
the Manila Bay itself or by polluters in adjoining lands and in
water bodies or waterways that empty into the bay. Sec. 16
of RA 9275, on the other hand, specifically adverts to "any
person who causes pollution in or pollutes water bodies,"
which may refer to an individual or an establishment that
pollutes the land mass near the Manila Bay or the waterways,
such that the contaminants eventually end up in the bay. In
this situation, the water pollution incidents are so numerous
and involve nameless and faceless polluters that they can
validly be categorized as beyond the specific pollution
incident level.
Not to be ignored of course is the reality that the government
agencies concerned are so undermanned that it would be
almost impossible to apprehend the numerous polluters of
the Manila Bay. It may perhaps not be amiss to say that the
apprehension, if any, of the Manila Bay polluters has been
few and far between. Hence, practically nobody has been
required to contain, remove, or clean up a given water
pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations.
Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152,
covers for all intents and purposes a general cleanup
situation.
160
structures is not seriously addressed with sustained resolve,
then practically all efforts to cleanse these important bodies
of water would be for naught. The DENR Secretary said as
much.38
Giving urgent dimension to the necessity of removing these
illegal structures is Art. 51 of PD 1067 or the Water Code,39
which prohibits the building of structures within a given
length along banks of rivers and other waterways. Art. 51
reads:
The banks of rivers and streams and the shores of the seas
and lakes throughout their entire length and within a zone of
three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins, are subject to the easement of public use in
the interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any kind.
(Emphasis added.)
Judicial notice may likewise be taken of factories and other
industrial establishments standing along or near the banks of
the Pasig River, other major rivers, and connecting
waterways. But while they may not be treated as
unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and
waterways. The DILG and the concerned LGUs, have,
accordingly, the duty to see to it that non-complying
industrial establishments set up, within a reasonable period,
the necessary waste water treatment facilities and
infrastructure to prevent their industrial discharge, including
their sewage waters, from flowing into the Pasig River, other
major rivers, and connecting waterways. After such period,
non-complying establishments shall be shut down or asked to
transfer their operations.
At this juncture, and if only to dramatize the urgency of the
need for petitioners-agencies to comply with their statutory
161
RA 9003 took effect on February 15, 2001 and the adverted
grace period of five (5) years which ended on February 21,
2006 has come and gone, but no single sanitary landfill
which strictly complies with the prescribed standards under
RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec.
48 of RA 9003, like littering, dumping of waste matters in
roads, canals, esteros, and other public places, operation of
open dumps, open burning of solid waste, and the like. Some
sludge companies which do not have proper disposal
facilities simply discharge sludge into the Metro Manila
sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins
the pollution of water bodies, groundwater pollution, disposal
of infectious wastes from vessels, and unauthorized transport
or dumping into sea waters of sewage or solid waste and of
Secs. 4 and 102 of RA 8550 which proscribes the introduction
by human or machine of substances to the aquatic
environment including "dumping/disposal of waste and other
marine litters, discharge of petroleum or residual products of
petroleum of carbonaceous materials/substances [and other]
radioactive, noxious or harmful liquid, gaseous or solid
substances, from any water, land or air transport or other
human-made structure."
In the light of the ongoing environmental degradation, the
Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to
immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there
is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by
law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be overemphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the plants
and sea life that once thrived in its blue waters. But the tasks
ahead, daunting as they may be, could only be accomplished
if those mandated, with the help and cooperation of all civicminded individuals, would put their minds to these tasks and
take responsibility. This means that the State, through
petitioners, has to take the lead in the preservation and
protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is
over. Petitioners must transcend their limitations, real or
imaginary, and buckle down to work before the problem at
hand becomes unmanageable. Thus, we must reiterate that
different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic
functions in cleaning up and rehabilitating the Manila Bay. We
are disturbed by petitioners hiding behind two untenable
claims: (1) that there ought to be a specific pollution incident
before they are required to act; and (2) that the cleanup of
the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to
radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which
explicitly provides that the State shall protect and advance
the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that
the right to a balanced and healthful ecology need not even
be written in the Constitution for it is assumed, like other civil
and political rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental
importance
with
intergenerational
implications.41 Even assuming the absence of a categorical
legal provision specifically prodding petitioners to clean up
the bay, they and the men and women representing them
cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear
as humanly as possible. Anything less would be a betrayal of
the trust reposed in them.
162
WHEREFORE, the petition is DENIED. The September 28,
2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No.
74944 and the September 13, 2002 Decision of the RTC in
Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision
shall now read:
WHEREFORE, judgment is hereby rendered ordering the
abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No. 34
[1990]) to make them fit for swimming, skin-diving, and other
forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the
primary
agency
responsible
for
the
conservation,
management, development, and proper use of the countrys
environment and natural resources, and Sec. 19 of RA 9275,
designating the DENR as the primary government agency
responsible for its enforcement and implementation, the
DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the
earliest possible time. It is ordered to call regular
coordination
meetings
with
concerned
government
departments and agencies to ensure the successful
implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the
Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code
163
Bataan in developing, using recognized methods,
fisheries and aquatic resources in the Manila Bay.
the
164
(12) The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and
also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision,
each submit to the Court a quarterly progressive report of the
activities undertaken in accordance with this Decision.
No costs.
SO ORDERED.
165
Imbong v. Ochoa, GR. 204819, April 8, 2014
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it
is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs , and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."1
To this day, poverty is still a major stumbling block to the
nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been
geared towards the revitalization of the economy, the
bludgeoning dearth in social services remains to be a
problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying
path to the realization of its very purpose, that is, the general
welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet
of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures
and bring concrete and substantial solutions within the reach
of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that
merely casts its watchful eyes on clashing stakeholders until
it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its
solemn duty to interpret legislation vis-a-vis the most vital
and enduring principle that holds Philippine society together the supremacy of the Philippine Constitution.
166
(3) Petition for Certiorari,9 filed by the Task Force for Family
and Life Visayas, Inc., and Valeriano S. Avila, in their
capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life
Cagayan De Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a
domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity
as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo
Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(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 BorromeoGarcia, Stella Acedera, and Berteni Catalufia Causing, in their
167
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
168
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 nondelegation 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
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
for
the
169
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
170
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.
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
171
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its
implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its
power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand,
the OSG asserts that it should submit to the legislative and
political wisdom of Congress and respect the compromises
made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"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
172
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
173
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
174
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
175
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
176
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
177
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 Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right
to life and health of the unborn child under Section 12, Article
II of the Constitution. The assailed legislation allowing access
to abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms
prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and
178
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.
179
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
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
180
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
181
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
182
As emphasized by the Framers of the Constitution:
vasectomy,
even
abortifacients.157
xxx
Atty. Noche:
xxx
xxx
condoms
are
not
classified
as
Before the union of the eggs, egg and the sperm, there is no
life yet.
Justice Bersamin:
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
To be protected.
Atty. Noche:
Justice Bersamin:
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
183
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.
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
184
moral, political, or religious view of human life or of human
embryos.164
It would legally permit what the Constitution proscribes abortion and abortifacients.
Not surprisingly, even the OSG does not support this position.
1] xx x.
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
185
xxx.
xxx.
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,
186
the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to
reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents
the fertilized ovum to reach and be implanted in the mother's
womb is an abortifacient (third kind), the RH Law does not
intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not
declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it
recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent - all the
way until it reaches and implants in the mother's womb. After
all, if life is only recognized and afforded protection from the
moment the fertilized ovum implants - there is nothing to
prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it
affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life
begins at fertilization, not at implantation. When a fertilized
ovum is implanted in the uterine wall , its viability is
sustained but that instance of implantation is not the point of
beginning of life. It started earlier. And as defined by the RH
Law, any drug or device that induces abortion, that is, which
kills or destroys the fertilized ovum or prevents the fertilized
ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under
Section 9 of the law that "any product or supply included or
to be included in the EDL must have a certification from the
FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot
187
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
188
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
189
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
190
"(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.
191
on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to
the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress
cannot legislate that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first
sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have
been tested, evaluated, and approved by the FDA. The FDA,
not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is
safe and non-abortifacient. The provision of the third
sentence concerning the requirements for the inclusion or
removal of a particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering the
inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and
effective family planning products and supplies by the
National Drug Formulary in the EDL is not mandatory. There
must first be a determination by the FDA that they are in fact
safe, legal, non-abortifacient and effective family planning
products and supplies. There can be no predetermination by
Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and
tubal ligation are not covered by the constitutional
192
conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in
Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners
meanwhile, contend that the requirement to refer the matter
to another health care service provider is still considered a
compulsion on those objecting healthcare service providers.
They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14
and 1 7 of the law are too secular that they tend to disregard
the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory
pro-bono reproductive health services to indigents encroach
upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking
reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector
to become an unwilling participant in the commission of a
serious sin under Catholic teachings. While the right to act on
one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show
compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat
that endangers state interests. It does not explain how the
rights of the people (to equality, non-discrimination of rights,
sustainable
human
development,
health,
education,
information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands
of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious
freedom.194
193
Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that
the same does not violate the constitutional guarantee of
religious freedom, it being a carefully balanced compromise
between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that
of the citizen who needs access to information and who has
the right to expect that the health care professional in front
of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise one's
religion without unnecessarily infringing on the rights of
others.202
Whatever burden is placed on the petitioner's religious
freedom is minimal as the duty to refer is limited in duration,
location and impact.203
Regarding mandatory family planning seminars under
Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to
have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that
those who object to any information received on account of
their attendance in the required seminars are not compelled
to accept information given to them. They are completely
free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without
intervention of the State.204
For their part, respondents De Venecia et al., dispute the
notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception
throughout the years and note the general acceptance of the
benefits of contraceptives by its followers in planning their
families.
194
The Framers, however, felt the need to put up a strong
barrier so that the State would not encroach into the affairs
of the church, and vice-versa. The principle of separation of
Church and State was, thus, enshrined in Article II, Section 6
of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be
inviolable.
Verily, the principle of separation of Church and State is
based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much less
question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On the
other hand, the church cannot impose its beliefs and
convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should
ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic
sense, which refers to a temple, a mosque, an iglesia, or any
other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious
congregations collectively.
Balancing the benefits that religion affords and the need to
provide an ample barrier to protect the State from the pursuit
of its secular objectives, the Constitution lays down the
following mandate in Article III, Section 5 and Article VI,
Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of
civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned
to the armed forces, or to any penal institution, or
government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom
provides two guarantees: the Establishment Clause and the
Free Exercise Clause.
The establishment clause "principally prohibits the State from
sponsoring any religion or favoring any religion as against
other religions. It mandates a strict neutrality in affairs
among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the
respect for the inviolability of the human conscience.207
Under this part of religious freedom guarantee, the State is
prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the
concept of religious freedom, the Court, in Victoriano v.
Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for
the support of any religious tenets or the modes of worship of
any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion
within limits of utmost amplitude. It has been said that the
195
religion clauses of the Constitution are all designed to protect
the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within
its power, a general law which has for its purpose and effect
to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81
S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not
designed to serve contradictory purposes. They have a single
goal-to promote freedom of individual religious beliefs and
practices. In simplest terms, the free exercise clause
prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were
intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and
practices.210
Corollary to the guarantee of free exercise of one's religion is
the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
196
In ascertaining the limits of the exercise of religious freedom,
the compelling state interest test is proper.218 Underlying
the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor, it was
written:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on the
Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious
freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and
overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the " clear and present danger" test in
the maiden case of A merican Bible Society. Not surprisingly,
all the cases which employed the "clear and present danger"
or "grave and immediate danger" test involved, in one form
or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not
prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German
has been overruled by Ebralinag which employed the "grave
and immediate danger" test . Victoriano was the only case
that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to
the facts of the case.
197
which involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by upholding
the paramount interests of the state, seeks to protect the
very state, without which, religious liberty will not be
preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court
to determine whether the use of contraceptives or one's
participation in the support of modem reproductive health
measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith,
practice, doctrine, form of worship, ecclesiastical law, custom
and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil
courts."220 The jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while
the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the
guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and
respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to
violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of
all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes
reproductive health, the right to education and information,
and the right to choose and make decisions for themselves in
accordance with their religious convictions, ethics, cultural
198
6. Active participation by nongovernment organizations
(NGOs) , women's and people's organizations, civil society,
faith-based
organizations, the
religious sector
and
communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs
will address the priority needs of women, the poor, and the
marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a
parent to respond to the needs and aspirations of the family
and children. It is likewise a shared responsibility between
parents to determine and achieve the desired number of
children, spacing and timing of their children according to
their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and
economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted
allowing the use of contraceptives. To some medical
practitioners,
however,
the
whole
idea
of
using
contraceptives is an anathema. Consistent with the principle
of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts
what the government can do with religion, it also limits what
religious sects can or cannot do with the government. They
can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular
religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their
supposition that the State cannot enhance its population
control program through the RH Law simply because the
199
conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed
by the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against
his will, refers a patient seeking information on modem
reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has
been compelled to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner Bernas) has
written, "at the basis of the free exercise clause is the
respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out
clause, it is, however, a false compromise because it makes
pro-life health providers complicit in the performance of an
act that they find morally repugnant or offensive. They
cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty
if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily
intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that
should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to
utter what is not in his mind.223 While the RH Law seeks to
provide freedom of choice through informed consent,
freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of one's
religion.224
200
be struck down for being violative of the freedom of religion.
The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of
information regarding programs and services and in the
performance of reproductive health procedures, the religious
freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc.
v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it
is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."10
The Court is not oblivious to the view that penalties provided
by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction,
a law tends to be toothless and ineffectual. Nonetheless,
when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly
chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer
a patient to another, or who declines to perform reproductive
health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
I'll go to another point. The RH law .. .in your Comment- inIntervention on page 52, you mentioned RH Law is replete
with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this
with qualifications. Now, you have read, I presumed you have
201
read the IRR-Implementing Rules and Regulations of the RH
Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long
IRR and I have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I
cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal
health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors." Do you agree with
this?
Congressman Lagman:
Senior State Solicitor Hilbay:
I will have to go over again the provisions, Your Honor.
Yes, Justice.
Justice Mendoza:
Justice De Castro:
In other words, public health officers in contrast to the
private practitioners who can be conscientious objectors,
skilled
health
professionals
cannot
be
considered
conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
... which you are discussing awhile ago with Justice Abad.
What is the compelling State interest in imposing this duty to
refer to a conscientious objector which refuses to do so
because of his religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the
law, the law must prevail.230
202
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard
is a compelling State interest, this is an ordinary health
legislation involving professionals. This is not a free speech
matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest
which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security
and welfare of the community can justify the infringement of
religious freedom. If the government fails to show the
seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to
believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated
when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to
the life or health of an individual in the perceived scenario of
the subject provisions. After all, a couple who plans the
timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not
the mother decides to adopt or use the information, product,
method or supply given to her or whether she even decides
to become pregnant at all. On the other hand, the burden
placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks
consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify
the infringement of the conscientious objector's religious
freedom, the respondents have failed to demonstrate "the
203
parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to
address pregnancy and infant health and nutrition;
(b) Comprehensive Health Information and Education. The State shall provide women in all sectors with appropriate,
timely, complete, and accurate information and education on
all the above-stated aspects of women's health in
government education and training programs, with due
regard to the following:
(1) The natural and primary right and duty of parents in
the rearing of the youth and the development of moral
character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and
strengthening of character;
204
revelation, the proponents still insist that such number of
maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the
delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange
for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid
exception set forth in the law. While generally healthcare
service providers cannot be forced to render reproductive
health care procedures if doing it would contravene their
religious beliefs, an exception must be made in lifethreatening cases that require the performance of
emergency procedures. In these situations, the right to life of
the mother should be given preference, considering that a
referral by a medical practitioner would amount to a denial of
service, resulting to unnecessarily placing the life of a mother
in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that
we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the
life of a child, the doctor is morally obliged always to try to
save both lives. If, however, it is impossible, the resulting
death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the
principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child
is never justified to bring about a "good" effect. In a conflict
situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save
both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to
205
cultivates disunity and fosters animosity in the family rather
than promote its solidarity and total development.240
The Court cannot but agree.
The
1987
Constitution
is
replete
with
provisions
strengthening the family as it is the basic social institution. In
fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.
206
wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family,
all for the sake of reducing the population. This would be a
marked departure from the policy of the State to protect
marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is
a private matter which belongs to the couple, not just one of
them. Any decision they would reach would affect their future
as a family because the size of the family or the number of
their children significantly matters. The decision whether or
not to undergo the procedure belongs exclusively to, and
shared by, both spouses as one cohesive unit as they chart
their own destiny. It is a constitutionally guaranteed private
right. Unless it prejudices the State, which has not shown any
compelling interest, the State should see to it that they chart
their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c)
of R.A. No. 9710, otherwise known as the "Magna Carta for
Women," provides that women shall have equal rights in all
matters relating to marriage and family relations, including
the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of
the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not be
allowed to betray the constitutional mandate to protect and
strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive
health procedure.242
The right to chart their own destiny together falls within the
protected zone of marital privacy and such state intervention
would encroach into the zones of spousal privacy guaranteed
by the Constitution. In our jurisdiction, the right to privacy
was first recognized in Marje v. Mutuc,243 where the Court,
speaking through Chief Justice Fernando, held that "the right
to privacy as such is accorded recognition independently of
its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the
207
guardian/s except when the minor is already a parent or has
had a miscarriage.
There can be no other interpretation of this provision except
that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision
making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is
already cut off just because there is a need to tame
population growth.
208
As in the case of the conscientious objector, an exception
must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life
of the minor who has already suffered a miscarriage and that
of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be
denied the appropriate medical care urgently needed to
preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)
(ii)249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical
procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above,
and in the case of an abused child as provided in the first
sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To
deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to
Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education
under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners,
these provisions effectively force educational institutions to
teach reproductive health education even if they believe that
the same is not suitable to be taught to their students.250
Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver
that the prevalence of contraceptives has led to an increase
of out-of-wedlock births; divorce and breakdown of families;
the acceptance of abortion and euthanasia; the "feminization
of poverty"; the aging of society; and promotion of
promiscuity among the youth.251
209
behavior, gender sensitivity and physical and emotional
changes among adolescents - the Court finds that the legal
mandate provided under the assailed provision supplements,
rather than supplants, the rights and duties of the parents in
the moral development of their children.
Furthermore, as Section 14 also mandates that the
mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it
becomes apparent that the petitioners' contention that
Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might
raise their objection to their participation in the reproductive
health education program provided under Section 14 of the
RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case
be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from
vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a
"private health service provider" among those who may be
held punishable but does not define who is a "private health
care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private
health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health
210
health care professional, who is a doctor of medicine, a nurse
or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health
worker who has undergone training programs under any
accredited government and NGO and who voluntarily renders
primarily health care services in the community after having
been accredited to function as such by the local health board
in accordance with the guidelines promulgated by the
Department of Health (DOH) .
The Court need not belabor the issue of whether the right to
be exempt from being obligated to render reproductive
health service and modem family planning methods, includes
exemption from being obligated to give reproductive health
information and to render reproductive health procedures.
Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to
render reproductive health service and modem family
planning methods, necessarily includes exemption from
being obligated to give reproductive health information and
to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the
providing of information and the rendering of medical
procedures.
7-Egual Protection
The same can be said with respect to the contention that the
RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby
quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
The petitioners also claim that the RH Law violates the equal
protection clause under the Constitution as it discriminates
against the poor because it makes them the primary target of
the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health
among the poor, the RH Law introduces contraceptives that
would effectively reduce the number of the poor. Their bases
are the various provisions in the RH Law dealing with the
211
poor, especially those mentioned in the guiding principles259
and definition of terms260 of the law.
They add that the exclusion of private educational
institutions from the mandatory reproductive health
education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had
the occasion to expound on the concept of equal protection.
Thus:
One of the basic principles on which this government was
founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat
similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the
state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a
legitimate governmental objective."
212
"underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is pursuant
to Section 11, Article XIII of the Constitution which recognizes
the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in
addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick,
elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes
poor and marginalized couples who are suffering from fertility
issues and desire to have children. There is, therefore, no
merit to the contention that the RH Law only seeks to target
the poor to reduce their number. While the RH Law admits
the use of contraceptives, it does not, as elucidated above,
sanction abortion. As Section 3(1) explains, the "promotion
and/or stabilization of the population growth rate is incidental
to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of
children a couple may have and does not impose conditions
upon couples who intend to have children. While the
petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would
raise them in a truly humane way, a deeper look into its
provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of
government programs to promote basic reproductive health
care.
213
profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the
very lives of the people. A fortiori, this power includes the
power of Congress263 to prescribe the qualifications for the
practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public
safety; and to regulate or control such professions or trades,
even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of
involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono
service. Other than non-accreditation with PhilHealth, no
penalty is imposed should they choose to do otherwise.
Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to
provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro
bono service against their will. While the rendering of such
service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive
imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed,
however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their
religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress
to the FDA of the power to determine whether or not a supply
214
establishments and facilities
determined by the FDA;
of
health
products,
as
"x x x
"(h) To conduct appropriate tests on all applicable health
products prior to the issuance of appropriate authorizations
to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors,
importers, exporters, wholesalers, retailers, consumers, and
non-consumer users of health products to report to the FDA
any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon
verified complaint for health products, whether or not
registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after due
process has been observed;
"(k) After due process, to order the ban, recall, and/or
withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or
patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned
to implement the risk management plan which is a
requirement
for
the
issuance
of
the
appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and
duties of the FDA are specific to enable the agency to carry
out the mandates of the law. Being the country's premiere
and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with
the necessary powers and functions to make it effective.
215
duties and functions currently vested upon them. They shall
also discharge the functions and responsibilities of national
agencies and offices devolved to them pursuant to this Code.
Local government units shall likewise exercise such other
powers
and
discharge
such
other
functions
and
responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not
limited to, x x x.
While the aforementioned provision charges the LGUs to take
on the functions and responsibilities that have already been
devolved upon them from the national agencies on the
aspect of providing for basic services and facilities in their
respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving
nationally-funded
projects,
facilities,
programs
and
services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof,
public works and infrastructure projects and other facilities,
programs and services funded by the National Government
under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially
funded from foreign sources, are not covered under this
Section, except in those cases where the local government
unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the
national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power
over a program for which funding has been provided by the
national
government
under
the
annual
general
appropriations act, even if the program involves the delivery
of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on
216
the relationship between the national and the regional
governments.274 Except for the express and implied
limitations imposed on it by the Constitution, Congress
cannot be restricted to exercise its inherent and plenary
power to legislate on all subjects which extends to all matters
of general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates
natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a
law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural
law, the Court is not obliged to see if a statute, executive
issuance or ordinance is in conformity to it. To begin with, it is
not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists.
The jurists of the philosophical school are interested in the
law as an abstraction, rather than in the actual law of the
past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to
strike down a law. In Republic v. Sandiganbayan,278 the very
case cited by the petitioners, it was explained that the Court
is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural
law. Rather, natural law is to be used sparingly only in the
most peculiar of circumstances involving rights inherent to
man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not
sanction the taking away of life. It does not allow abortion in
any shape or form. It only seeks to enhance the population
control program of the government by providing information
and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
217
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied
workers. What would happen if the country would be weighed
down by an ageing population and the fewer younger
generation would not be able to support them? This would be
the situation when our total fertility rate would go down
below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population problem,
but the State should not use coercive measures (like the
penal provisions of the RH Law against conscientious
objectors) to solve it. Nonetheless, the policy of the Court is
non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature
has laid down. Its duty is to say what the law is as enacted by
the lawmaking body. That is not the same as saying what the
law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies
adopted by the legislative branch. Nor is it the business of
this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature
to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold
neutrality, the Court must carry out the delicate function of
interpreting the law, guided by the Constitution and existing
legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine
itself to the judicial task of saying what the law is, as enacted
by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a
mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive
measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No.
218
5) Section 23(a)(3) and the corresponding provision in the
RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or lifethreatening case, as defined under Republic Act No. 8344, to
another health care service provider within the same facility
or one which is conveniently accessible regardless of his or
her religious beliefs;
6) Section 23(b) and the corresponding provision in the RHIRR, particularly Section 5 .24 thereof, insofar as they punish
any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless
of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR
regarding the rendering of pro bona reproductive health
service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which
added the qualifier "primarily" in defining abortifacients and
contraceptives, as they are ultra vires and, therefore, null
and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19,
2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354
which have been herein declared as constitutional.
SO ORDERED.
219
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of
the Regional Trial Court of Makati, Branch 61 and
STARBRIGHT SALES ENTERPRISES, INC., respondents.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are
covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the
Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr.
Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to reverse and set aside the Orders dated June
20, 1991 and September 19, 1991 of the Regional Trial Court,
Branch 61, Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of
petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the motion
for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a
domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality of
Paraaque, Metro Manila and registered in the name of
petitioner.
220
respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake
the eviction or that the earnest money be returned to the
latter; (6) private respondent counterproposed that if it would
undertake the eviction of the squatters, the purchase price of
the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it seven
days from receipt of the letter to pay the original purchase
price in cash; (8) private respondent sent the earnest money
back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced by two
separate Deeds of Sale, one over Lot 5-A, and another over
Lots 5-B and 5-D; and that the sellers' transfer certificate of
title over the lots were cancelled, transferred and registered
in the name of Tropicana; (9) Tropicana induced petitioner
and the PRC to sell the lots to it and thus enriched itself at
the expense of private respondent; (10) private respondent
demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private
respondent is willing and able to comply with the terms of
the contract to sell and has actually made plans to develop
the lots into a townhouse project, but in view of the sellers'
breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the
Deeds of Sale between petitioner and the PRC on the one
hand, and Tropicana on the other; (2) the reconveyance of
the lots in question; (3) specific performance of the
agreement to sell between it and the owners of the lots; and
(4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately
moved to dismiss the complaint petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr.
Cirilos for being an improper party. An opposition to the
motion was filed by private respondent.
221
A preliminary matter to be threshed out is the procedural
issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question the
order denying petitioner's motion to dismiss. The general rule
is that an order denying a motion to dismiss is not reviewable
by the appellate courts, the remedy of the movant being to
file his answer and to proceed with the hearing before the
trial court. But the general rule admits of exceptions, and one
of these is when it is very clear in the records that the trial
court has no alternative but to dismiss the complaint
(Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In
such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is
the personality or legal interest of the Department of Foreign
Affairs to intervene in the case in behalf of the Holy See
(Rollo, pp. 186-190).
In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity in
a foreign court, it requests the Foreign Office of the state
where it is sued to convey to the court that said defendant is
entitled to immunity.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international
organization sued in an American court requests the
Secretary of State to make a determination as to whether it is
entitled to immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the Attorney
General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar
procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130 [1965]; Note:
Immunity from Suit of Foreign Sovereign Instrumentalities
and Obligations, 50 Yale Law Journal 1088 [1941]).
222
sovereign immunity. On the other hand, private respondent
insists that the doctrine of non-suability is not anymore
absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial
transaction for the sale of a parcel of land located in the
Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a
brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870,
the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the
Papal States and the limitation of the territory under the Holy
See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial (Salonga and Yap,
Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran
Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City. It
also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries,
and to enter into treaties according to International Law
(Garcia, Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican
City "for the purpose of assuring to the Holy See absolute
and visible independence and of guaranteeing to it
indisputable sovereignty also in the field of international
relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to
determine whether the statehood is vested in the Holy See or
in the Vatican City. Some writers even suggested that the
treaty created two international persons the Holy See and
Vatican City (Salonga and Yap, supra, 37).
223
As expressed in Section 2 of Article II of the 1987
Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation,
such principles of International Law are deemed incorporated
as part of the law of the land as a condition and consequence
of our admission in the society of nations (United States of
America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard
to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987];
Coquia and Defensor-Santiago, Public International Law 194
[1984]).
Some states passed legislation to serve as guidelines for the
executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the
Foreign Sovereign Immunities Act of 1976, which defines a
commercial activity as "either a regular course of commercial
conduct or a particular commercial transaction or act."
Furthermore, the law declared that the "commercial
character of the activity shall be determined by reference to
the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose." The Canadian
Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial
activity" as any particular transaction, act or conduct or any
regular course of conduct that by reason of its nature, is of a
"commercial character."
The restrictive theory, which is intended to be a solution to
the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises
and the decisions in countries which follow the restrictive
224
constituting acts jure gestionis, we have to come out with our
own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act
can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for
gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
non-suability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may
be implied.
In the case at bench, if petitioner has bought and sold lands
in the ordinary course of a real estate business, surely the
said transaction can be categorized as an act jure gestionis.
However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but
claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio.
The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-
225
state or instrumentality is entitled to sovereign or diplomatic
immunity is a political question that is conclusive upon the
courts (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is
recognized and affirmed by the executive branch, it is the
duty of the courts to accept this claim so as not to embarrass
the executive arm of the government in conducting the
country's foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign
Affairs.
Ordinarily, the procedure would be to remand the case and
order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said
certification, such procedure would however be pointless and
unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge
Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for
the redress of its grievances. Under both Public International
Law and Transnational Law, a person who feels aggrieved by
the acts of a foreign sovereign can ask his own government
to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government,
through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young,
Remedies of Private Claimants Against Foreign States,
Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine
government decides to espouse the claim, the latter ceases
to be a private cause.
226
Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et
al., GR. 206510, September 15, 2014
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan
with prayer for the issuance of a Temporary Environmental
Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental
Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military
ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring
people of southern Philippines) language which means "long
reef exposed at low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the south atoll - and the
Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and
Jessie Beazley are considered part of Cagayancillo, a remote
island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by
virtue of Proclamation No. 306 issued by President Corazon C.
Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization (UNESCO) as
a World Heritage Site. It was recognized as one of the
Philippines'
oldest
ecosystems,
containing
excellent
examples of pristine reefs and a high diversity of marine life.
The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and
227
On January 20, 2013, U.S. 7th Fleet Commander, Vice
Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretazy Albert F. del Rosario that
the United States will provide appropriate compensation for
damage to the reef caused by the ship."6 By March 30, 2013,
the US Navy-led salvage team had finished removing the last
piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their
behalf
and
in
representation
of
their
respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition agairtst
Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercises CoDirector ("US respondents"); President Benigno S. Aquino III
in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines (AFP), DF A Secretary Albert F. Del Rosario,
Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T.
Gazmin (Department of National Defense), Secretary Jesus P.
Paje (Department of Environment and Natural Resources),
Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer
in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively
the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and postsalvaging operations of the USS Guardian cause and continue
to cause environmental damage of such magnitude as to
affect the provinces of Palawan, Antique, Aklan, Guimaras,
Iloilo, Negros Occidental, Negros Oriental, Zamboanga del
228
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an
additional buffer zone;
2. After summary hearing, issue a Resolution extending the
TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall
include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following
the dispositive portion of Nicolas v. Romulo, "to forthwith
negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and
environmental accountability] under Philippine authorities as
provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to
commence administrative, civil, and criminal proceedings
against erring officers and individuals to the full extent of the
law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary
and exclusive criminal jurisdiction over erring U.S. personnel
under the circumstances of this case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims for
damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such had
been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and production
of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the
Guardian;
229
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged areas of
TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination
incorporated as part of the law of the land under Section 2,
Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha
Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable
under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to
the petition, petitioners also filed a motion for early
resolution and motion to proceed ex parte against the US
respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and production
orders, respondents assert that: ( 1) the grounds relied upon
for the issuance of a TEPO or writ of Kalikasan have become
fait accompli as the salvage operations on the USS Guardian
were already completed; (2) the petition is defective in form
and substance; (3) the petition improperly raises issues
involving the VFA between the Republic of the Philippines and
the United States of America; and ( 4) the determination of
the extent of responsibility of the US Government as regards
the damage to the Tubbataha Reefs rests exdusively with the
executive branch.
230
suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers the "rhythm and harmony
of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia,
the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and
utilization be equitably accessible to the present a:: well as
future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection
of that right for the generations to come.15 (Emphasis
supplied.)
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in
the Rules "collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of
nature."16
Having settled the issue of locus standi, we shall address the
more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit any
pleading or manifestation in this case.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,17 is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its consent.
231
awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded.
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the comp.taint on the ground that
it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in
the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further
expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary
international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to
the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. If
the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the
state itself. The proscription is not accorded for the benefit of
an individual but for the State, in whose service he is, under
the maxim -par in parem, non habet imperium -that all states
are soverr~ign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to
perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being
232
In Shauf v. Court of Appeals,25 we discussed the limitations
of the State immunity principle, thus:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by
JustiGe
Zaldivar
in
Director
of
the
Bureau
of
Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials
or officers by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State
from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director
of a State department on the ground that, while claiming to
act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act
or under an assumption of authority which he does not have,
is not a suit against the State within the constitutional
provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for
perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in
his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that
a public official may be liable in his personal private capacity
233
of jurisdiction over maritime regimes. It is a branch of public
international law, regulating the relations of states with
respect to the uses of the oceans."28 The UNCLOS is a
multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November
16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that
seeks to balance State sovereignty (mare clausum) and the
principle of freedom of the high seas (mare liberum).29 The
freedom to use the world's marine waters is one of the oldest
customary principles of international law.30 The UNCLOS
gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal
States more or less jurisdiction over foreign vessels
depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned,
the Coastal State exercises sovereignty, subject to the
UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the
following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of
the coastal State
If any warship does not comply with the laws and regulations
of the coastal State concerning passage through the
territorial sea and disregards any request for compliance
therewith which is made to it, the coastal State may require it
to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a
warship
or other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for any
loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated
for non-commercial purposes with the laws and regulations of
the coastal State concerning passage through the territorial
sea or with the provisions of this Convention or other rules of
international law.
Article 32
Immunities of warships and other government ships operated
for non-commercial purposes
With such exceptions as are contained in subsection A and in
articles 30 and 31, nothing in this Convention affects the
immunities of warships and other government ships operated
for non-commercial purposes. (Emphasis supplied.) A foreign
warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in
which the above provisions may apply. But what if the
offending warship is a non-party to the UNCLOS, as in this
case, the US?
An overwhelming majority - over 80% -- of nation states are
now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in
UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to
concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to
234
revise the objection.able provisions. The revisions satisfied
the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its advice
and consent. Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse
array of stakeholders, the Senate has since withheld the
consent required for the President to internationally bind the
United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations
Committee (SFRC) during the 108th and 110th Congresses,
its progress continues to be hamstrung by significant pockets
of political ambivalence over U.S. participation in
international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest
priorities. This did not occur, and no Senate action has been
taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement
given by President Reagan on March 10, 1983 that the US will
"recognize the rights of the other , states in the waters off
their coasts, as reflected in the convention [UNCLOS], so long
as the rights and freedom of the United States and others
under international law are recognized by such coastal
states", and President Clinton's reiteration of the US policy
"to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage
other countries to do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if under its policy, the
US 'recognize[s] the rights of the other states in the waters
off their coasts,"' Justice Carpio postulates that "there is more
reason to expect it to recognize the rights of other states in
their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS was
centered on its disagreement with UN CLOS' regime of deep
seabed mining (Part XI) which considers the oceans and deep
seabed commonly owned by mankind," pointing out that
such "has nothing to do with its [the US'] acceptance of
customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate
General's Corps publicly endorses the ratification of the
UNCLOS, as shown by the following statement posted on its
official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a
maximum outer limit for territorial seas; codifies innocent
passage, transit passage, and archipelagic sea lanes passage
rights; works against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert
its sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the
Sea Convention that first established the concept of a
maritime Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to conserve and
manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that nonmembership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US
to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital
marine resources, would shirk from its obligation to
235
compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend
a Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations
to cooperate in the global task to protect and preserve the
marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate,
on a regional basis, directly or through competent
international organizations, in formulating and elaborating
international rules, standards and recommended practices
and procedures consistent with this Convention, for the
protection and preservation of the marine environment,
taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the.latter's territorial sea, the
flag States shall be required to leave the territorial '::;ea
immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by
their warships or any other government vessel operated for
non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit
found in the VFA. Likewise, they invoke federal statutes in the
US under which agencies of the US have statutorily waived
their immunity to any action. Even under the common law
tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines to
promote "common security interests" between the US and
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Section 15, Rule 7 enumerates the reliefs which may be
granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the
petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the
following:
(a) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of a
duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance
with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic reports
on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.
(Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting
that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had
already been accomplished when petitioners sought recourse
from this Court. But insofar as the directives to Philippine
237
SEC. 4. Preliminary conference.-If mediation fails, the court
will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case
to the branch clerk of court for a preliminary conference for
the following purposes:
(a) To assist the parties in reaching a settlement;
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SEC. 5. Pre-trial conference; consent decree.-The judge shall
put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the
parties in accordance with law, morals, public order and
public policy to protect the right of the people to a balanced
and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make
the parties to agree to compromise or settle in accordance
with law at any stage of the proceedings before rendition of
judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009
when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government was
reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the
grounding.38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the USS
Guardian grounding, the US Embassy in the Philippines has
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On the other hand, we cannot grant the additional reliefs
prayed for in the petition to order a review of the VFA and to
nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec.
Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the
United States as attested and certified by the duly authorized
representative of the United States government. The VF A
being a valid and binding agreement, the parties are required