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EN BANC

B/GEN. (RET.) FRANCISCO V. G.R. No. 170165


GUDANI AND LT. COL.
ALEXANDER F. BALUTAN
Petitioners, Present:
PANGANIBAN, C.J.,
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
LT./GEN. GENEROSO S. SENGA CORONA,
AS CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR.,
PHILIPPINES, COL. GILBERTO AZCUNA,
JOSE C. ROA AS THE PRE-TRIAL TINGA,
INVESTIGATING OFFICER, THE CHICO-NAZARIO,
PROVOST MARSHALL GENERAL GARCIA, and
OF THE ARMED FORCES OF THE VELASCO, JR., JJ.
PHILIPPINES AND THE GENERAL
COURT-MARTIAL,
Respondents.
Promulgated:
August 15, 2006
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DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid under civilian law. Obedience and deference
to the military chain of command and the President as commander-in-chief are the cornerstones of a professional military in the firm cusp of civilian
control. These values of obedience and deference expected of military officers are content-neutral, beyond the sway of the officers own sense of what
is prudent or rash, or more elementally, of right or wrong. A self-righteous military invites itself as the scoundrels activist solution to the ills of
participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo [1] enjoining them and other military officers from
testifying before Congress without the Presidents consent. Petitioners also pray for injunctive relief against a pending preliminary investigation
against them, in preparation for possible court-martial proceedings, initiated within the military justice system in connection with petitioners violation
of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center on fundamental freedoms
enshrined in the Bill of Rights. Although these concerns will not be

addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, even if not
determinative of the resolution of this petition. Had the relevant issue before us been the right of the Senate to compel the testimony of petitioners,
the constitutional questions raised by them would have come to fore. Such a scenario could have very well been presented to the Court in such
manner, without the petitioners having had to violate a direct order from their commanding officer. Instead, the Court has to resolve whether
petitioners may be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier General Francisco Gudani (Gen.
Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant
Superintendent, and the latter as the Assistant Commandant of Cadets. [2]

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to appear at a public hearing before the
Senate Committee on National Defense and Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an
audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of the Commission on Elections
(COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had been
designated as commander, and Col. Balutan a member, of Joint Task Force Ranao by the AFP Southern Command. Joint Task Force Ranao was
tasked with the maintenance of peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur. [3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were among the several AFP officers who
received a letter invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to
Sen. Biazon that he would be unable to attend the hearing due to a previous commitment inBrunei, but he nonetheless directed other officers from the
AFP who were invited to attend the hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the Superintendent of the PMA Gen.
Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. [5]Noting that Gen. Gudani and Col.
Balutan had been invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the
hearing.[6] Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing scheduled for the following day, since
the AFP Chief of Staff was himself unable to attend said hearing, and that some of the invited officers also could not attend as they were attending to
other urgent operational matters. By this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA Superintendent from the office of Gen.
Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY
CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP
AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.[7]

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no approval has been granted by the President
to any AFP officer to appear before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing
started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional information surrounding the
testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of the AFP Command Centerhad attempted to deliver the radio
message to Gen. Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they were not permitted entry by the
subdivision guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier
that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he
already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani, but Gen. Gudani
refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take
Gen. Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a statement which noted that the two
had appeared before the Senate Committee in spite of the fact that a guidance has been given that a Presidential approval should be sought prior to
such an appearance; that such directive was in keeping with the time[-]honored principle of the Chain of Command; and that the two officers
disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court
Martial proceedings x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then. [9]
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes
that the E.O. enjoined officials of the executive department including the military establishment from appearing in any legislative inquiry without her
approval.[10] This Court subsequently ruled on the constitutionality of the said executive order in Senate v. Ermita.[11] The relevance of E.O. 464
and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal
General, to appear before the Office of the Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before
Col. Galarpe, both petitioners invoked their right to remain silent. [12] The following day, Gen. Gudani was compulsorily retired from military service,
having reached the age of 56.[13]
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with violation of Article of War 65,
on willfully disobeying a superior officer, in relation to Article of War 97, on conduct prejudicial to the good order and military discipline. [14] As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM).
[15]
Consequently, on 24 October 2005, petitioners were separately served with Orders respectively addressed to them and signed by respondent Col.
Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at the PreTrial Investigation of the Charges for violation of Articles 65 [16] and 97[17] of Commonwealth Act No. 408,[18] and to submit their counter-affidavits
and affidavits of witnesses at the Office of the Judge Advocate General. [19] The Orders were accompanied by respective charge sheets against
petitioners, accusing them of violating Articles of War 65 and 97.

It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking that (1) the order of
President Arroyo coursed through Gen. Senga preventing petitioners from testifying before Congress without her prior approval be declared
unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their
successors-in-interest or persons acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners, as a
consequence of their having testified before the Senate on 28 September 2005. [20]
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP personnel appear before Congress as a gag
order, which violates the principle of separation of powers in government as it interferes with the investigation of the Senate Committee conducted in
aid of legislation. They also equate the gag order with culpable violation of the Constitution, particularly in relation to the publics constitutional right
to information and transparency in matters of public concern. Plaintively, petitioners claim that the Filipino people have every right to hear the
[petitioners] testimonies, and even if the gag order were unconstitutional, it still was tantamount to the crime of obstruction of justice. Petitioners
further argue that there was no law prohibiting them from testifying before the Senate, and in fact, they were appearing in obeisance to the authority
of Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of his compulsory retirement on 4
October 2005. It is pointed out that Article 2, Title I of the Articles of War defines persons subject to military law as all officers and soldiers in the
active service of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating Articles 65 and 97 of the Articles of
War is not an issue before this Court, especially considering that per records, petitioners have not yet been subjected to court martial proceedings.
Owing to the absence of such proceedings, the correct inquiry should be limited to whether respondents could properly initiate such proceedings
preparatory to a formal court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners acts surrounding their
testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first instance, [21] is
averse to making any authoritative findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged by petitioners and the OSG (for
respondents). Petitioners were called by the Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and
testified before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which in turn was sourced per instruction
from President Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely admit before this
Court that they had learned of such order prior to their testimony, although the OSG asserts that at the very least, Gen. Gudani already knew of such
order before he testified. [22] Yet while this fact may be ultimately material in the court-martial proceedings, it is not determinative of this petition,
which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, which emanated from the President, could
lead to any investigation for court-martial of petitioners. It has to be acknowledged as a general principle [23]that AFP personnel of whatever rank are
liable under military law for violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the Court to
decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present petition. Notably, it is not alleged that
petitioners were in any way called to task for violating E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga
not to appear before the Senate Committee, an order that stands independent of the executive order. Distinctions are called for, since Section
2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of
Staff are covered by the executive privilege, as among those public officials required in Section 3 of E.O. 464 to secure prior consent of the President
prior to appearing before either House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void, [24] and the impression may
have been left following Senate that it settled as doctrine, that the President is prohibited from requiring military personnel from attending
congressional hearings without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant limitations. Insofar as E.O. 464
compelled officials of the executive branch to seek prior presidential approval before appearing before Congress, the notion of executive control also
comes into consideration.[25] However, the ability of the President to require a military official to secure prior consent before appearing before
Congress pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of the President. By tradition
and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to
executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the issues raised herein. The decision
in Senate was rendered with the comfort that the nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately
hinge on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the aegis of the
commander-in-chief powers[26] to require military officials from securing prior consent before appearing before Congress. The pertinent factors in
considering that question are markedly outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this petition that
those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General Gudani argues that he can no longer
fall within the jurisdiction of the court-martial, considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No.

408, which defines persons subject to military law as, among others, all officers and soldiers in the active service of the [AFP], and points out that he
is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the Court declared that an officer whose name was
dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were
initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is
terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla.
Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is
terminated.[28]
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the
contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by courtmartial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to
cases where the offense was committed just prior to the end of the term. In such cases the interests of
discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day
on which his service legally terminates and his right to a discharge is complete, proceedings with a view
to trial are commenced against him as by arrest or the service of charges, the military jurisdiction will
fully attach and once attached may be continued by a trial by court-martial ordered and held after the
end of the term of the enlistment of the accused x x x [29]
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the initiation of the proceedings against
him occurred before he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilladoctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, [a]n officer or enlisted man carried in the retired list [of the Armed Forces of the
Philippines] shall be subject to the Articles of War x x x [30] To this citation, petitioners do not offer any response, and in fact have excluded the matter
of Gen. Gudanis retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to their appearance before the Senate,
claiming that it violates the constitutional right to information and transparency in matters of public concern; or if not, is tantamount at least to the
criminal acts of obstruction of justice and grave coercion. However, the proper perspective from which to consider this issue entails the examination
of the basis and authority of the President to issue such an order in the first place to members of the AFP and the determination of whether such an
order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian
supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control
and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent
only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. [31] Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches
and seizures.[32]
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the legislative and executive
branches of government in relation to military affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is the
power to declare the existence of a state of war.[33] Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ
of habeas corpus.[34] The approval of the Commission on Appointments is also required before the President can promote military officers from the
rank of colonel or naval captain. [35]Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution is silent,
except for thecommander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may possess. [36]
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration
that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x x x [37] Outside explicit constitutional limitations, such as
those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the
persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and
speech of military officers, activities which may otherwise be sanctioned under civilian law.

Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered confined under house arrest by then Chief of
Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press statements or
give any press conference during his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that
certain liberties of persons in the military service, including the freedom of speech, may be circumscribed by rules of
military discipline. Thus, to a certain degree, individual rights may be curtailed, because the effectiveness of the military in
fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful
orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier's personal
views on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to
be considered.[39]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes several of the cherished freedoms of
civilian life. It is part and parcel of the military package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are inspired in their later careers precisely by their
rebellion against the regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on character, for the
military mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer themselves to be part of. But for those
who do make the choice to be a soldier, significant concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the democratic system of governance. The
constitutional role of the armed forces is as protector of the people and of the State. [40] Towards this end, the military must insist upon a respect for
duty and a discipline without counterpart in civilian life. [41] The laws and traditions governing that discipline have a long history; but they are founded
on unique military exigencies as powerful now as in the past. [42] In the end, it must be borne in mind that the armed forces has a distinct subculture
with unique needs, a specialized society separate from civilian society. [43] In the elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They are those of a
world apart, a very ancient world, which exists in parallel with the everyday world but does not belong to it. Both worlds change
over time, and the warrior world adopts in step to the civilian. It follows it, however, at a distance. The distance can never be
closed, for the culture of the warrior can never be that of civilization itself. [44]
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior officer is punishable by court-martial
under Article 65 of the Articles of War.[45] An individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors.
For there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service,
were permitted to act upon their own opinion of theirrights [or their opinion of the

Presidents intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free speech and mobility. Kapunan is ample precedent in
justifying that a soldier may be restrained by a superior officer from speaking out on certain matters. As a general rule, the discretion of a military
officer to restrain the speech of a soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such
restraint. It is integral to military discipline that the soldiers speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters. The
Constitution requires that [t]he armed forces shall be insulated from partisan politics, and that [n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote. [47] Certainly, no constitutional provision or military indoctrination will eliminate a soldiers
ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a potential source
of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional function as protectors of the people and of
the State. For another, it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent against the President,
the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This fundamental
principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by regime changes wherein active military dissent
from the chain of command formed a key, though not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms on a politicized military, informed as they are
on the trauma of absolute martial rule. Our history might imply that a political military is part of the natural order, but this view cannot be affirmed
by the legal order. The evolutionary path of our young democracy necessitates a reorientation from this view, reliant as our socio-political culture has
become on it. At the same time, evolution mandates a similar demand that our system of governance be more responsive to the needs and aspirations
of the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary restriction on members of the military.
A soldier cannot leave his/her post without the consent of the commanding officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be able to appropriately respond to any exigencies. For the same reason,
commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness the birth of his firstborn, or to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices during the period of conscription, wherein
the higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before he/she may leave his destination. A
soldier who goes from the properly appointed place of duty or absents from his/her command, guard, quarters, station, or camp without proper leave
is subject to punishment by court-martial.[48] It is even clear from the record that petitioners had actually requested for travel authority from the PMA
in Baguio City to Manila, to attend the Senate Hearing. [49]Even petitioners are well aware that it was necessary for them to obtain permission from
their superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed. They seek to be exempted from military
justice for having traveled to the Senate to testify before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right of military officers to restrict the speech and
movement of their juniors. The ruinous consequences to the chain of command and military discipline simply cannot warrant the
Courts imprimatur on petitioners position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military discipline. After all, petitioners seek to
impress on us that their acts are justified as they were responding to an invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately came from the President, the head of the executive branch of government
and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying before a legislative inquiry? We hold
that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer
who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance
before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the
President has the duty to faithfully execute.[50]
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on executive officials summoned by the
legislature to attend a congressional hearing. In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that
the privilege must be formally invoked on specified grounds. However, the ability of the President to prevent military officers from testifying
before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and
speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based
foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds significant
control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, [51] yet it is on the President that
the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of
military discipline and the chain of command mandate that the Presidents ability to control the individual members of the armed forces be accorded
the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm
that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-inchief of the armed forces.[52]
At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The
Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries in aid of legislation. [53] Inasmuch as it is ill-advised for
Congress to interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss
right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential
prohibition. Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from members of the
armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend
legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executives prerogatives as commander-inchief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that
persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed
by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last
resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not
enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its
rulings by the other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among others, the Court has not shirked from
reviewing the exercise by Congress of its power of legislative inquiry. [56] Arnault recognized that the legislative power of inquiry and the process to

enforce it, is an essential and appropriate auxiliary to the legislative function. [57]On the other hand, Bengzon acknowledged that the power of both
houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is circumscribed by Section 21, Article VI of
the Constitution.[58] From these premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from
testifying and producing evidence before the committee, holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on the constitutional power of
congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of information in the
legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called McCarthy era, however, the right of Congress to conduct
inquirites in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected
to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of legislation, and
thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible
way for Congress to avoid such result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or
to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there
would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The provision
requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying
the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong
to the executive branch. Nonetheless, there may be exceptional circumstances wherein a clear pattern of abuse of the legislative
power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive
Branch to forestall these abuses may be accorded judicial sanction [59].
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying before Congress
without the Presidents consent notwithstanding the invocation of executive privilege to justify such prohibition. The Court did not rule that the power
to conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the viability of executive privilege
stood on a case to case basis. Should neither branch yield to the other branchs assertion, the constitutional recourse is to the courts, as the final arbiter
if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the AFP to appear before
Congress, the legislative body seeking such testimony may seek judicial relief to compel the attendance. Such judicial action should be directed at the
heads of the executive branch or the armed forces, the persons who wield authority and control over the actions of the officers concerned. The
legislative purpose of such testimony, as well as any defenses against the same whether grounded on executive privilege, national security or similar
concerns would be accorded due judicial evaluation. All the constitutional considerations pertinent to either branch of government may be raised,
assessed, and ultimately weighed against each other. And once the courts speak with finality, both branches of government have no option but to
comply with the decision of the courts, whether the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative and executive
branches of government on the proper constitutional parameters of power. [60] This is the fair and workable solution implicit in the constitutional
allocation of powers among the three branches of government. The judicial filter helps assure that the particularities of each case would ultimately
govern, rather than any overarching principle unduly inclined towards one branch of government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled
to yield to the other. Moreover, judicial review does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and responsibilities that are political in nature, are free to smooth
over the thorns in their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to
authorize the appearance of the military officers before Congress. Even if the President has earlierdisagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on them and other military officers not
to testify before Congress without the Presidents consent. Yet these issues ultimately detract from the main point that they testified before the Senate
despite an order from their commanding officer and their commander-in-chief for them not to do so, [61] in contravention of the traditions of military
discipline which we

affirm today. The issues raised by petitioners could have very well been raised and properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify before the Senate without having to countermand their Commander-in-chief and superior
officer under the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief and Commanding General in
obeisance to a paramount idea formed within their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The Constitution simply does not permit the infraction
which petitioners have allegedly committed, and moreover, provides for an orderly manner by which the same result could have been achieved
without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.

EN BANC

DATU ZALDY UY AMPATUAN, G.R. No. 190259

ANSARUDDIN ADIONG, REGIE


SAHALI-GENERALE
Petitioners, Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
HON. RONALDO PUNO, in his capacity
as Secretary of the Department of Interior
and Local Government and alter-ego of
President Gloria Macapagal-Arroyo,
and anyone acting in his stead and on
behalf of the President of the Philippines,
ARMED FORCES OF THE PHILIPPINES
(AFP), or any of their units operating in
the Autonomous Region in Muslim
Mindanao (ARMM), and PHILIPPINE
NATIONAL POLICE, or any of their Promulgated:
units operating in ARMM,
Respondents. June 7, 2011

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

DECISION
ABAD, J.:

On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some news reporters,
then President Gloria Macapagal-Arroyo issued Proclamation 1946, [1] placing the Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato under a state of emergency. She directed the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP) to undertake such measures as may be allowed by the Constitution and by law
to prevent and suppress all incidents of lawless violence in the named places.

Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO 273)
transferring supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the Office of the President to
the Department of Interior and Local Government (DILG). But, due to issues raised over the terminology used in AO
273, the President issued Administrative Order 273-A (AO 273-A) amending the former, by delegating instead of
transferring supervision of the ARMM to the DILG.[3]
[2]

Claiming that the Presidents issuances encroached on the ARMMs autonomy, petitioners Datu Zaldy Uy Ampatuan,
Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials, [4] filed this petition for prohibition under Rule 65.
They alleged that the proclamation and the orders empowered the DILG Secretary to take over ARMMs operations and
seize the regional governments powers, in violation of the principle of local autonomy under Republic Act 9054 (also
known as the Expanded ARMM Act) and the Constitution. The President gave the DILG Secretary the power to exercise,
not merely administrative supervision, but control over the ARMM since the latter could suspend ARMM officials and
replace them.[5]

Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of emergency, especially
in theProvince of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred. The deployment
of troops and the taking over of the ARMM constitutes an invalid exercise of the Presidents emergency powers.
[6]
Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and that
respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents, [7] the Office of the Solicitor General (OSG) insisted that the President
issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore peace and order in subject places.
[8]
She issued the proclamation pursuant to her calling out power [9] as Commander-in-Chief under the first sentence of
Section 18, Article VII of the Constitution. The determination of the need to exercise this power rests solely on her
wisdom.[10] She must use her judgment based on intelligence reports and such best information as are available to her
to call out the armed forces to suppress and prevent lawless violence wherever and whenever these reared their ugly
heads.
On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers over
the ARMM to the DILG Secretary who was her alter ego any way. These orders did not authorize a take over of the
ARMM. They did not give him blanket authority to suspend or replace ARMM officials. [11] The delegation was necessary
to facilitate the investigation of the mass killings. [12] Further, the assailed proclamation and administrative orders did
not provide for the exercise of emergency powers.[13]

Although normalcy has in the meantime returned to the places subject of this petition, it might be relevant to rule on
the issues raised in this petition since some acts done pursuant to Proclamation 1946 and AOs 273 and 273-A could
impact on the administrative and criminal cases that the government subsequently filed against those believed
affected by such proclamation and orders.

The Issues Presented

The issues presented in this case are:

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under
Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded ARMM Organic Act;

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the
PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City; and

3. Whether or not the President had factual bases for her actions.

The Rulings of the Court


We dismiss the petition.

One. The claim of petitioners that the subject proclamation and administrative orders violate the principle of
local autonomy is anchored on the allegation that, through them, the President authorized the DILG Secretary to take
over the operations of the ARMM and assume direct governmental powers over the region.

But, in the first place, the DILG Secretary did not take over control of the powers of the ARMM. After law
enforcement agents took respondent Governor of ARMM into custody for alleged complicity in the Maguindanao
massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December 10, 2009
pursuant to the rule on succession found in Article VII, Section 12, [14] of RA 9054. In turn, Acting Governor Adiong
named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor. [15] In
short, the DILG Secretary did not take over the administration or operations of the ARMM.

Two. Petitioners contend that the President unlawfully exercised emergency powers when she ordered the
deployment of AFP and PNP personnel in the places mentioned in the proclamation. [16] But such deployment is not by
itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which
provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places
mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary
powers. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the
Constitution directly vests in the President. She did not need a congressional authority to exercise the same.

Three. The Presidents call on the armed forces to prevent or suppress lawless violence springs from the power
vested in her under Section 18, Article VII of the Constitution, which provides.[17]

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. x x x

While it is true that the Court may inquire into the factual bases for the Presidents exercise of the above
power,[18] it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated Bar of the
Philippines v. Hon. Zamora,[19] it is clearly to the President that the Constitution entrusts the determination of the need
for calling out the armed forces to prevent and suppress lawless violence. Unless it is shown that such determination
was attended by grave abuse of discretion, the Court will accord respect to the Presidents judgment. Thus, the Court
said:

If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the courts.
Besides the absence of textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to
the courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical
proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence


network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the military
to prevent or suppress lawless violence must be done swiftly and decisively if it were to
have any effect at all. x x x.[20]

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan
Kudarat andCotabato City, as well as the Presidents exercise of the calling out power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the take over
of the entire ARMM by the DILG Secretary had no basis too. [21]

But, apart from the fact that there was no such take over to begin with, the OSG also clearly explained the
factual bases for the Presidents decision to call out the armed forces, as follows:

The Ampatuan and Mangudadatu clans are prominent families engaged in the
political control of Maguindanao. It is also a known fact that both families have an arsenal
of armed followers who hold elective positions in various parts of the ARMM and the rest
of Mindanao.

Considering the fact that the principal victims of the brutal bloodshed are members
of the Mangudadatu family and the main perpetrators of the brutal killings are members
and followers of the Ampatuan family, both the military and police had to prepare for and
prevent reported retaliatory actions from the Mangudadatu clan and additional offensive
measures from the Ampatuan clan.

xxxx

The Ampatuan forces are estimated to be approximately two thousand four hundred
(2,400) persons, equipped with about two thousand (2,000) firearms, about four hundred
(400) of which have been accounted for. x x x

As for the Mangudadatus, they have an estimated one thousand eight hundred
(1,800) personnel, with about two hundred (200) firearms. x x x

Apart from their own personal forces, both clans have Special Civilian Auxiliary
Army (SCAA) personnel who support them: about five hundred (500) for the Ampatuans
and three hundred (300) for the Mangudadatus.

What could be worse than the armed clash of two warring clans and their armed
supporters, especially in light of intelligence reports on the potential involvement of rebel
armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu Andal
Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall worsen
the age-old territorial dispute between the said RAG and the Ampatuan family.

xxxx

On the other hand, RAG faction which is based in Sultan Kudarat was reported to
have received three million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for the
procurement of ammunition. The said faction is a force to reckon with because the group is
well capable of launching a series of violent activities to divert the attention of the people
and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu
family. The Cotabato-based faction has the strength of about five hundred (500) persons
and three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has
the strength of about four hundred (400) persons and three hundred (300) firearms and
was reported to be moving towards Maguindanao to support the Mangudadatu clan in its
armed fight against the Ampatuans.[22]

In other words, the imminence of violence and anarchy at the time the President issued Proclamation 1946 was too
grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned. Progress
reports also indicated that there was movement in these places of both high-powered firearms and armed men
sympathetic to the two clans. [23] Thus, to pacify the peoples fears and stabilize the situation, the President had to take
preventive action. She called out the armed forces to control the proliferation of loose firearms and dismantle the
armed groups that continuously threatened the peace and security in the affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn the declaration of a state of
emergency under Proclamation 1946. It has been reported[24] that the declaration would not be lifted soon because
there is still a need to disband private armies and confiscate loose firearms. Apparently, the presence of troops in
those places is still necessary to ease fear and tension among the citizenry and prevent and suppress any violence
that may still erupt, despite the passage of more than a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject
places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual
bases, the Court must respect the Presidents actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

EN BANC

LOUIS BAROK C. BIRAOGO,


Petitioner,

G.R. No. 192935

- versus THE PHILIPPINE TRUTH COMMISSION OF 2010,


Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN,
REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners,

- versus -

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.


and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B.
ABAD,
Respondents.

G.R. No. 193036


Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:
December 7, 2010

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

DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument secures and guarantees to them.
--- Justice Jose P. Laurel[1]
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited
and defined, and by which these powers are distributed among the several departments. [2] The Constitution is the basic and paramount law to which
all other laws must conform and to which all persons, including the highest officials of the land, must defer. [3] Constitutional doctrines must remain
steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor
itself to the whims and caprices of government and the people who run it. [4]
For consideration before the Court are two consolidated cases [5] both of which essentially assail the validity and constitutionality of Executive Order
No. 1, dated July 30, 2010, entitled Creating the Philippine Truth Commission of 2010.
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a
citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the
Constitution[6] as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. [7]
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when then Senator Benigno Simeon Aquino
III declared his staunch condemnation of graft and corruption with his slogan, Kung walang corrupt, walang mahirap. The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a
public office is a public trust and mandates that public officers and employees, who are servants of the people, must at
all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of this
mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a
nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust and
confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the appropriate cases against those
involved, if warranted, and to deter others from committing the evil, restore the peoples faith and confidence in the
Government and in their public servants;
WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections kung walang
corrupt, walang mahirap expresses a solemn pledge that if elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of the
powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the COMMISSION, which shall primarily seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities
of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial
body.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a)

Identify and determine the reported cases of such graft and corruption which it will investigate;

b)
Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption which it
has chosen to investigate, and to this end require any agency, official or employee of the Executive Branch, including
government-owned or controlled corporations, to produce documents, books, records and other papers;
c)
Upon proper request or representation, obtain information and documents from the Senate and the House of
Representatives records of investigations conducted by committees thereof relating to matters or subjects being
investigated by the Commission;
d)
Upon proper request and representation, obtain information from the courts, including the Sandiganbayan and
the Office of the Court Administrator, information or documents in respect to corruption cases filed with the
Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or affirmations as
the case may be;
f)
Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the ends of
justice be fully served, that such person who qualifies as a state witness under the Revised Rules of Court of the
Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by means
of a special or interim report and recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are liable for graft and corruption under
pertinent applicable laws;
h)
Call upon any government investigative or prosecutorial agency such as the Department of Justice or any of the
agencies under it, and the Presidential Anti-Graft Commission, for such assistance and cooperation as it may require
in the discharge of its functions and duties;
i)
Engage or contract the services of resource persons, professionals and other personnel determined by it as
necessary to carry out its mandate;
j)
Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and efficiently carry
out the objectives of this Executive Order and to ensure the orderly conduct of its investigations, proceedings and
hearings, including the presentation of evidence;
k)
Exercise such other acts incident to or are appropriate and necessary in connection with the objectives and
purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
SECTION 4. Detail of Employees. x x x.
SECTION 5. Engagement of Experts. x x x
SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.


SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel who,
without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the
Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when required,
shall be subject to administrative disciplinary action. Any private person who does the same may be dealt with in
accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds for the
Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and responsibilities
as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.
SECTION 13. Furniture/Equipment. x x x.
SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to
expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and
instances of graft and corruption during the prior administrations, such mandate may be so extended accordingly by
way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not affect
the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc body formed under the
Office of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees,
their co-principals, accomplices and accessories during the previous administration, and thereafter to submit its finding and recommendations to the
President, Congress and the Ombudsman. Though it has been described as an independent collegial body, it is essentially an entity within the Office
of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one. [8]
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine
from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal,
civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created as official, transitory and non-judicial factfinding bodies to establish the facts and context of serious violations of human rights or of international humanitarian law in a countrys past.
[9]
They are usually established by states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for
transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as opposed to a particular event; (3) they are temporary bodies that finish their work
with the submission of a report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the
State.[10] Commissions members are usually empowered to conduct research, support victims, and propose policy recommendations to prevent
recurrence of crimes. Through their investigations, the commissions may aim to discover and learn more about past abuses, or formally acknowledge
them. They may aim to prepare the way for prosecutions and recommend institutional reforms. [11]

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth
and Reconciliation Commission of South Africa, the principal function of which was to heal the wounds of past violence and to prevent future
conflict by providing a cathartic experience for victims.
The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment of perpetrators. As one writer [12] puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs
that they have committed in the past, we have this to say: There can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to their occurring over and over again.
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a public office and
appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create an entirely new public office which was hitherto inexistent like the
Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the Truth Commission with
quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution
and the Department of Justice created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and
personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.
(e) The creation of the Philippine Truth Commission of 2010 violates the consistent and general international practice
of four decades wherein States constitute truth commissions to exclusively investigate human rights violations, which customary
practice forms part of the generally accepted principles of international law which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined in the Constitution.
(f) The creation of the Truth Commission is an exercise in futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda to mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the constitutionality and validity of an executive issuance or even a statute. [13]
In their Consolidated Comment, [14] the respondents, through the Office of the Solicitor General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents executive power
and power of control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed
and that, in any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No.
1416[16] (as amended by P.D. No. 1772), R.A. No. 9970, [17] and settled jurisprudence that authorize the President to create or form
such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of the
Ombudsman(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-judicial body
and its functions do not duplicate, supplant or erode the latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable
purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved:
1.
Executive Order No. 1;

Whether or not the petitioners have the legal standing to file their respective petitions and question

2.
Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.[19]
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of the commissions investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings. [20]
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail Executive OrderNo. 1.
Evidently, their petition primarily invokes usurpation of the power of the Congress as a body to which they belong as members. This certainly
justifies their resolve to take the cudgels for Congress as an institution and present the complaints on the usurpation of their power and rights as
members of the legislature before the Court. As held in Philippine Constitution Association v. Enriquez,[21]
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can
have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office
remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as
legislators.[22]
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the PTC and the budget for its
operations.[23] It emphasizes that the funds to be used for the creation and operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds for the commission will not entail congressional action but will simply be
an exercise of the Presidents power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case of David v.
Arroyo[24] explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as a right of appearance in a court of justice on a given question. In private suits,
standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who stands to be benefited or injured by the judgment in

the suit or the party entitled to the avails of the suit. Succinctly put, the plaintiffs standing is based on his own right to
the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right
in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or
taxpayer.In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has
to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or
taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a
different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of
public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: In matter of mere public right, howeverthe people are the real
partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan held
that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in any official policy or act with
which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt, later reaffirmed
in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action,
and it is not sufficient that he has a general interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of
the Senate,Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and AntiChinese League of the Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest. [25]
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct
injury to the party claiming the right of judicial review. In the first Emergency Powers Cases,[27]ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders although they had only an indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance [28] laid down in CREBA v. ERC and Meralco[29] are non-existent in this
case. The Court, however, finds reason in Biraogos assertion that the petition covers matters of transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. Where the issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar,
they should be resolved for the guidance of all. [30] Undoubtedly, the Filipino people are more than interested to know the status of the Presidents first
effort to bring about a promised change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform its constitutional duty to settle legal controversies
with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not merely an adjunct body of
the Office of the President.[31] Thus, in order that the President may create a public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power cannot be presumed [32] since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission. [33] He adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as reorganize, transfer, consolidate, merge, and abolish. [34] Insofar as it vests in the President the plenary power to
reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of powers
enshrined in the Constitution and must be deemed repealed upon the effectivity thereof. [35]
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the delegated authority of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public office, much less a truth commission; 2) is limited to the reorganization of
the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the Office of the President Proper,
transfer of functions and transfer of agencies; and 4) only to achieve simplicity, economy and efficiency. [36] Such continuing authority of the President
to reorganize his office is limited, and by issuing Executive Order No. 1, the President overstepped the limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the
Office of the President Proper has long been recognized. [37] According to the OSG, the Executive, just like the other two branches of government,
possesses the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated functions and in the
exercise of its administrative functions. [38] This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of the Constitution. [39]
It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant to his duty to ensure that
all laws are enforced by public officials and employees of his department and in the exercise of his authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of his officials. [40] The power of the President to investigate is not limited to
the exercise of his power of control over his subordinates in the executive branch, but extends further in the exercise of his other powers, such as his
power to discipline subordinates,[41] his power for rule making, adjudication and licensing purposes [42] and in order to be informed on matters which
he is entitled to know.[43]
The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative
power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG, the President may create
the PTC in order to, among others, put a closure to the reported large scale graft and corruption in the government. [45]
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to reorganize as expressed
in Section 31 of the Revised Administrative Code? Section 31 contemplates reorganization as limited by the following functional and structural lines:
(1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or
(3) transferring any agency under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision refers to reduction
of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body
or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term restructure an alteration of an existing structure. Evidently, the PTC was not part of the structure of the
Office of the President prior to the enactment of Executive Order No. 1. As held inBuklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]
But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power that which
constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of
the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions." It takes place when there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them.The EIIB is a bureau attached to the
Department of Finance. It falls under the Office of the President. Hence, it is subject to the Presidents continuing
authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with
that of the latter.[47] Clearly, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive,
while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory basis under P.D. 1416, as
amended by P.D. No. 1772.[48] The said law granted the President the continuing authority to reorganize the national government, including the power
to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.[49]
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public office. Said decree is already
stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the administrative
structure of the national government including the power to create offices and transfer appropriations pursuant to one of the purposes of the decree,
embodied in its last Whereas clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In
fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says it was
enacted to prepare the transition from presidential to parliamentary.
Now, in a parliamentary form of government, the legislative and
executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D. 1416
should not be considered effective anymore upon the promulgation,
adoption, ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is deemed
repealed, at least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC
finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal branches of government is a grant of all powers
inherent in them. The Presidents power to conduct investigations to aid him in ensuring the faithful execution of laws in this case, fundamental laws
on public accountability and transparency is inherent in the Presidents powers as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of
such authority.[51] As explained in the landmark case of Marcos v. Manglapus:[52]
x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of
the laws is only one of the powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial
has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution. [53] One of the recognized powers of the President granted pursuant to this constitutionallymandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano,[54]the authority of the President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative charges filed against the employees of the Department of Health for the anomalous purchase
of medicines was upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to which respondents belong, the President has the
obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating
team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President
is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the government structure, the
Court is not inclined to declare such executive power as non-existent just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is
no usurpation on the part of the Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of the Solicitor General, whatever funds the Congress has provided for the
Office of the President will be the very source of the funds for the commission. [55] Moreover, since the amount that would be allocated to the PTC
shall be subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The Presidents power to conduct investigations to ensure that laws are faithfully executed is well recognized. It flows from thefaithful-execution
clause of the Constitution under Article VII, Section 17 thereof. [56] As the Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his department.He has the authority to directly assume the functions of the
executive department.[57]
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial powers have been vested in the said body as it cannot adjudicate rights of persons who come before it.
It has been said that Quasi-judicial powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing and administering the same law. [58] In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the Court in Cario v. Commission on
Human Rights.[59] Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to search
or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of investigation, of
course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established
by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of
facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a
court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a
case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or
office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such,
the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to the
factual conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively, subject to appeals or modes of
review as may be provided by law.[60] Even respondents themselves admit that the commission is bereft of any quasi-judicial power.[61]
Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to

prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation. [62] The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against them, [63] is certainly not a function given to the commission. The phrase, when
in the course of its investigation, under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and
the Ombudsman.[64]
At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,[65] it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of municipal
trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges against
public employees and officials is likewise concurrently shared with the Department of Justice. Despite the passage of
the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the President
and the local Sanggunians to investigate complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No. 6770,
which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.
It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such
cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically out of the PTCs sphere of functions. Its power to investigate is limited to
obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of
the land. In this regard, the PTC commits no act of usurpation of the Ombudsmans primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by
no means exclusive and, thus, can be shared with a body likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for possible indictments for violations
of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III
(Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of singling out the previous administration as its sole object makes the PTC an adventure
in partisan hostility.[66] Thus, in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. [67]
The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass acts committed not only
during the administration of former President Arroyo but also during prior administrations where the same magnitude of controversies and
anomalies[68] were reported to have been committed against the Filipino people. They assail the classification formulated by the respondents as it does
not fall under the recognized exceptions because first, there is no substantial distinction between the group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons who abused their public office for personal gain; and second, the selective classification is not
germane to the purpose of Executive Order No. 1 to end corruption. [69] In order to attain constitutional permission, the petitioners advocate that the
commission should deal with graft and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal force. [70]
Position of respondents
According to respondents, while Executive Order No. 1 identifies the previous administration as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of large scale graft and corruption solely during the said administration.
[71]
Assuming arguendo that the commission would confine its proceedings to officials of the previous administration, the petitioners argue that no

offense is committed against the equal protection clause for the segregation of the transactions of public officers during the previous administration as
possible subjects of investigation is a valid classification based on substantial distinctions and is germane to the evils which the Executive Order
seeks to correct.[72] To distinguish the Arroyo administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the determination
of the truth regarding certain reports of large scale graft and corruption in the government and to put a closure to them by the
filing of the appropriate cases against those involved, if warranted, and to deter others from committing the evil, restore the
peoples faith and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality that
unlike with administrations long gone, the current administration will most likely bear the immediate consequence of the policies
of the previous administration.
Third. The classification of the previous administration as a separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally dissipated, the policy
lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to
issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a nascent
administration like the Presidential Commission on Good Government (PCGG), created by the late President Corazon C. Aquino
under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos
and his cronies, and the Saguisag Commission created by former President Joseph Estrada under Administrative Order No, 53, to
form an ad-hoc and independent citizens committee to investigate all the facts and circumstances surrounding Philippine
Centennial projects of his predecessor, former President Fidel V. Ramos. [73] [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the
1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[74]
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. [75] It requires public bodies and institutions to treat similarly situated individuals in a
similar manner.[76] The purpose of the equal protection clause is to secure every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution through the states duly constituted authorities. [77] 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. [78]
The equal protection clause is aimed at all official state actions, not just those of the legislature. [79] Its inhibitions cover all the departments
of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken. [80]
It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane
to
the
purpose
of
the
law;
(3)
It
is
not
limited
to
existing
conditions
only;
and
(4) It applies equally to all members of the same class. [81] Superficial differences do not make for a valid classification. [82]
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class.
The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the law to him. [84]
[83]

The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the
class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or
underinclude those that should otherwise fall into a certain classification. As elucidated inVictoriano v. Elizalde Rope Workers' Union [85] and
reiterated in a long line of cases,[86]
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon
all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection clause does not forbid

discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real differences, that it must be germane to
the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find out the truth concerning the reported cases of graft and corruption during
the previous administration[87] only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in
at least three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the COMMISSION, which shall primarily seek and find the truth on, and toward this end, investigate
reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities
of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough factfinding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public
officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous
administrationand thereafter submit its finding and recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations.
It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to the previous administration only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put
it, Superficial differences do not make for a valid classification. [88]
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that to include other past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness. [89] The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of
the PTC to stamp out or end corruption and the evil it breeds. [90]
The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no longer be the subjects of
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of previous administrations, given the bodys limited time
and resources. The law does not require the impossible(Lex non cogit ad impossibilia).[91]
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating almost a centurys
worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights
determined and all public authority administered. [93] Laws that do not conform to the Constitution should be stricken down for being unconstitutional.
[94]
While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read
together with the provisions of the Constitution. To exclude the earlier administrations in the guise of substantial distinctions would only confirm the
petitioners lament that the subject executive order is only an adventure in partisan hostility. In the case of US v. Cyprian,[95] it was written: A rather
limited number of such classifications have routinely been held or assumed to be arbitrary; those include: race, national origin, gender, political
activity or membership in a political party, union activity or membership in a labor union, or more generally the exercise of first amendment rights.
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
belong to the class.[96] Such a classification must not be based on existing circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the
members of the class.[97]
The Court is not unaware that mere underinclusiveness is not fatal to the validity of a law under the equal protection clause. [98] Legislation
is not unconstitutional merely because it is not all-embracing and does not include all the evils within its reach. [99] It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete. [100] In several instances,
the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the step by step process. [101] With regard to equal protection claims, a legislature does not run the risk of losing the
entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. [102]
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive
Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the past. The
equal protection clause is violated by purposeful and intentional discrimination. [103]
To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the commission does not only confine itself
to cases of large scale graft and corruption committed during the previous administration. [104] The OSG points to Section 17 of Executive Order No. 1,
which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be so extended accordingly by way of a supplemental Executive
Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of investigations of the PTC so as
to include the acts of graft and corruption committed in other past administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on the whim and caprice of the President. If he would decide not to include them,
the section would then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo administration. [105]

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,[106] that the PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause. The decision, however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its constitutionally mandated
power of Judicial Review with respect to recent initiatives of the legislature and the executive department, is exercising undue interference. Is the
Highest Tribunal, which is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation
of powers? Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be accused of being a hindrance to the nations thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial Power that includes the
duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also includes the
duty to rule on the constitutionality of the application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other

regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two co-equal bodies
of government, on the other. Many times the Court has been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. [107]
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather simply making sure
that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution. And, if after said review, the Court
finds no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its
people. But then again, it is important to remember this ethical principle: The end does not justify the means. No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it
cannot still be allowed.[108] The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.
The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed
to sap its strength nor greed for power debase its rectitude.[109]
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a
revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be
an affront to the Constitution. Of all the branches of the government, it is the judiciary which is the most interested in knowing the truth and so it
will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must be within
constitutional bounds for ours is still a government of laws and not of men. [110]
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONALinsofar as it is violative
of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as represented by Rep.


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

G.R. No. 159618

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
- versus -

VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ALBERTO ROMULO, in his capacity as


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

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and

SERENO, JJ.

Promulgated:

February 1, 2011

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

DECISION
VELASCO, JR., J.:

The Case

This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the NonSurrender Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America
(USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this
case.Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. [2]

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute [3] establishing the International Criminal
Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international
concern x x x and shall be complementary to the national criminal jurisdictions.[4] The serious crimes adverted to
cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and
crimes of aggression.[5]

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which,
by its terms, is subject to ratification, acceptance or approval by the signatory states. [6] As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippinesis not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of
Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between
the USA and the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy
Note adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect
what it refers to and defines aspersons of the RP and US from frivolous and harassment suits that might be brought
against them in international tribunals. [8] It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and
between the US and 33 other countries.[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any purpose,
unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a
third country, the [US] will not agree to the surrender or transfer of that person by the third country to
any international tribunal, unless such tribunal has been established by the UN Security Council,
absent the express consent of the Government of the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third country
to any international tribunal, unless such tribunal has been established by the UN Security Council,
absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall
continue to apply with respect to any act occurring, or any allegation arising, before the effective date
of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that, under US law, the said agreement did not
require the advice and consent of the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying
the Agreementand prays that it be struck down as unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement,
being in the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons
detailed in their comment, respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US
NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THEROME STATUTE OF THE [ICC] ALTHOUGH THIS
IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A.

Whether by entering into the x x x Agreement Respondents gravely abused their discretion
when they capriciously abandoned, waived and relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to prosecute and try persons as defined in the x x
x Agreement, x x x or literally any conduit of American interests, who have committed crimes
of genocide, crimes against humanity, war crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.

B.

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

C.

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

D.

Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse
of discretion amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THATARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly,
which resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it;
and second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes
and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first
tackle the issue of petitioners legal standing.
The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of
the Agreementcarries with it constitutional significance and is of paramount importance that justifies its
standing. Cited in this regard is what is usually referred to as the emergency powers cases, [12] in which ordinary
citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given question. [13] Specifically, it is a partys
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result [14] of the act
being challenged, and calls for more than just a generalized grievance. [15] The term interest refers to material interest,
as distinguished from one that is merely incidental. [16] The rationale for requiring a party who challenges the validity of
a law or international agreement to allege such a personal stake in the outcome of the controversy is to assure the

concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions. [17]

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits
are not brought by parties who have been personally injured by the operation of a law or any other government act,
but by concerned citizens, taxpayers, or voters who actually sue in the public interest. [18] Consequently, in a catena of
cases,[19] this Court has invariably adopted a liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising
issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs to
meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that
the person complaining has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the
mere fact that he is a citizen satisfies the requirement of personal interest. [21]

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

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to
brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line
of earlier cases, notably in the old but oft-cited emergency powers cases [22] and Kilosbayan v. Guingona, Jr.[23] In cases
of transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may relax the standing requirements
and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.

Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion
brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the
government,[25] we cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it

becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised
putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and
jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations.
[26]
An exchange of notes falls into the category of inter-governmental agreements, [27] which is an internationally
accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the
term as follows:

An exchange of notes is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the parties
being in the possession of the one signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval. [28]

In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through
executive action.[29] On the other hand, executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents denominated agreements or protocols. [30] As
former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of
Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes or otherwise begin,
may sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of
concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement
concluded between states in written form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation. [32] International agreements may be in
the form of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal
with a narrower range of subject matters than treaties.[33]

Under international law, there is no difference between treaties and executive agreements in terms of their
binding effects on the contracting states concerned, [34] as long as the negotiating functionaries have remained within
their powers.[35] Neither, on the domestic sphere, can one be held valid if it violates the Constitution. [36] Authorities are,
however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect.[37] As has been observed by US constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President,
the Senate, and the people; [38] a ratified treaty, unlike an executive agreement, takes precedence over any prior
statutory enactment.[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a
treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v.
Eastern Sea Trading, in which the Court reproduced the following observations made by US legal scholars:
[I]nternational agreements involving political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of
detail carrying out well established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subjectcategories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive agreement,
such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and settlement of claims.

[41]

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,
holding that an executive agreement through an exchange of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern
Sea Tradingis not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice
of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish
to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda[42] principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law
wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety,
among others.[43] Surely, the enumeration inEastern Sea Trading cannot circumscribe the option of each state on the
matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre
said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreement act, have been negotiated with foreign governments. x x x
They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits,
the admission of civil air craft, custom matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized [44] or a treaty-implementing
executive agreement,[45] which necessarily would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution[46]when a treaty is required, the Constitution does not classify
any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.

Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing
treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for
its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of
the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive
agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to
the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the
Senate. The Court has, in Eastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to the obligatory effect of
executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days of our
history, we have entered executive agreements covering such subjects as commercial and consular
relations, most favored-nation rights, patent rights, trademark and copyright protection, postal and

navigation arrangements and the settlement of claims. The validity of these has never been seriously
questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null
and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that theAgreement was constituted solely for the purpose of providing individuals or groups
of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state
parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute, thereby
constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53]thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible
for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC;
thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary
function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome
Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the
purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to petitioner,
is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners,
the jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of the signatory states]. [54] Art. 1 of
the Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international concern,
as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute. (Emphasis
ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes. This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was
committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.

Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome Statute,
which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the
provision states that no person who has been tried by another court for conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x.

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a while
the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome
Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their
respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement, violated its
duty required by the imperatives of good faith and breached its commitment under the Vienna Convention [57] to refrain
from performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For
nothing in the provisions of theAgreement, in relation to the Rome Statute, tends to diminish the efficacy of the
Statute, let alone defeats the purpose of the ICC.Lest it be overlooked, the Rome Statute contains a proviso that
enjoins the ICC from seeking the surrender of an erring person, should the process require the requested state to
perform an act that would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity


and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements pursuant
to which the consent of a sending State is required to surrender a person of that State to the Court,
unless the Court can first obtain the cooperation of the sending State for the giving of consent for
the surrender.

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

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a
State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the
object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty
would be premature.

As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the
Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give
priority to the request for surrender from the Court. x x x In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippinesregarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the
primacy of international agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away
the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating petitioners argument a bit differently, the

RP, by entering into theAgreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is
always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by
the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the US,
as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to exercise
its criminal jurisdiction over its erring citizens or over US persons committing high crimes in the country and defer to
the secondary criminal jurisdiction of the ICC over them. As to persons of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its national criminal jurisdiction
over the person concerned or to give its consent to the referral of the matter to the ICC for trial. In the same breath,
the US must extend the same privilege to the Philippines with respect to persons of the RP committing high crimes
within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake
the things set forth in the Agreement. Surely, one State can agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote
in Nicolas v. Romulo[59]a case involving the implementation of the criminal jurisdiction provisions of the RP-US Visiting
Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign
State allowed to enter another States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that
some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation
and amity with all nations.[60]

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive
some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived from a
pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to the other. On
the rationale that the Philippines has adopted the generally accepted principles of international law as part of the law
of the land, a portion of sovereignty may be waived without violating the Constitution. [61]Such waiver does not amount
to an unconstitutional diminution or deprivation of jurisdiction of Philippine courts. [62]

Agreement Not Immoral/Not at Variance


with Principles of International Law

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

The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends
that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its
treaty obligations under the Rome Statute, contrary to international law principles. [64]

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try
offenses under its national criminal laws and dispense justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished
in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all
the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the
ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or violative of international law concepts in the act of
the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru
the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having
been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the

President for performing, through respondents, a task conferred the President by the Constitutionthe power to enter
into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is
the sole organ and authority in the external affairs of the country. [65] The Constitution vests in the President the power
to enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the
President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into or ratify binding executive agreements has been
confirmed by long practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender agreementdid
nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of
ratification was laid to rest inPimentel, Jr. v. Office of the Executive Secretary. [67] As the Court emphasized in said case,
the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latters consent to the ratification of the treaty, refuse to ratify it.
[68]
This prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute. Under
Art. 125[69] thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar as
the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as
the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x


In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such crime.Instead,
the authorities may surrender or extradite suspected or accused persons in
the Philippines to the appropriate international court, if any, or to another State pursuant
to the applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to
grave crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the abovequoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international tribunal
those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to
prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international
tribunal; or (2) surrender the accused to another State if such surrender is pursuant to the applicable extradition laws
and treaties. But the Philippines may exercise these options only in cases where another court or international tribunal
is already conducting the investigation or undertaking the prosecution of such crime; otherwise, the Philippines must
prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under RA
9851, thePhilippines has the option to surrender such US national to the international tribunal if it decides not to
prosecute such USnational here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not
subject to the consent of theUS, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view
strongly argues that the Agreement prevents thePhilippineswithout the consent of the USfrom surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851. Consequently, the view is strongly impressed that the Agreementcannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented through an extradition law or a treaty with
the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the generally accepted principles of international law as part of
the law of the land, the Court is further impressed to perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies principles of law which constitute customary international law
or custom and for which reason it assumes the status of an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an exclusive act of the executive branch, can only implement,
but cannot amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of
the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senateratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec.
17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or
is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate
the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to
the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law,
genocide and other crimes against humanity; [70] (2) provides penal sanctions and criminal liability for their commission;
[71]
and (3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State
to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does
not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted
proviso clearly providesdiscretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word may. It is settled doctrine in statutory construction that
the word may denotes discretion, and cannot be construed as having mandatory effect. [73] Thus, the pertinent second
pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not
exercise its primary jurisdiction in cases where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime, still, the tenor of the Agreement is not repugnant to Sec.
17 of RA 9851. Said legal proviso aptly provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreementcan already be considered a treaty following this Courts
decision in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.[75]In Nicolas, We held that an executive agreement is a
treaty within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United
States.[76]

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty,
which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree No.
1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would
neither violate nor run counter to Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign loan agreements. However, before the petitions could be
resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition
moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines (the
President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive
agreement. He stated that an executive agreement has the force and effect of law x x x [it] cannot amend or
repeal prior laws.[78] Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not
a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that
under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other
crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in
the US, a person cannot be tried in the federal courts for an international crime unless Congress adopts a law defining
and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as
early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the
United States Code Annotated (USCA) provides for the criminal offense of war crimes which is similar to the war crimes
found in both the Rome Statute and RA 9851, thus:

(a)

Offense Whoever, whether inside or outside the United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also be subject to the penalty of
death.

(b) Circumstances The circumstances referred to in subsection (a) are that the person committing
such war crime or the victim of such war crime is a member of the Armed Forces of the United
States or a national of the United States (as defined in Section 101 of the Immigration and
Nationality Act).
(c)

Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August
1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the
Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when
committed in the context of and in association with an armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol
on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended
at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a
party to such Protocol, willfully kills or causes serious injury to civilians. [80]

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

1091. Genocide

(a)
Basic Offense Whoever, whether in the time of peace or in time of war and with
specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious
group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b). [81]

Arguing further, another view has been advanced that the current US laws do not cover every crime listed
within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under
the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas,
entitled On Trial: The US Military and the International Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of
law. The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the
teachings of highly qualified publicists. A highly qualified publicist is a scholar of public international law and the term
usually refers to legal scholars or academic writers. [82] It has not been shown that the authors[83] of this report are
highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome
Statute vis--vis the definitions under US laws:

Rome Statute
Article 6

US Law
1091. Genocide

Genocide
For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:

(a) Basic Offense Whoever, whether in the


time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such

(a) Killing members of the group;

(1) kills members of that group;

(b) Causing serious bodily or mental harm to


members of the group;

(2) causes serious bodily injury to members of


that group;

(c)

(3) causes the permanent impairment of the


mental faculties of members of the
group through drugs, torture, or similar
techniques;

Deliberately inflicting on the group


conditions of life calculated to bring about
its physical destruction in whole or in part;

(d) Imposing measures intended to prevent


births within the group;
(e) Forcibly transferring children of the group
to another group.

(4) subjects the group to conditions of life that


are intended to cause the physical
destruction of the group in whole or in
part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group to
another group;
shall be punished as provided in subsection
(b).

Article 8
War Crimes
2. For the purpose of this Statute, war crimes
means:

(a)

Definition As used in this Section the


term war crime means any conduct
(1) Defined as a grave breach in any of
the international conventions signed
at Geneva12 August 1949, or any

(a) Grave breaches of the Geneva


Conventions of 12 August 1949, namely, any
of the following acts against persons or
property protected under the provisions of the
relevant Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
international law, namely, any of the following
acts:
xxxx
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely, any
of the following acts committed against
persons taking no active part in the hostilities,
including members of armed forces who have
laid down their arms and those placed hors de
combat by sickness, wounds, detention or any
other cause:
xxxx

protocol to such convention to which


the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28
of the Annex to the Hague Convention
IV, Respecting the Laws and Customs
of War on Land, signed 18 October
1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d][85]) when committed in
the context of and in association with
an
armed
conflict
not
of
an
international character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions
of
the
Protocol
on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3
May 1996), when the United States is a
party to such Protocol, willfully kills or
causes serious injury to civilians.[86]

(d) Paragraph 2 (c) applies to armed conflicts


not of an international character and thus
does not apply to situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other
acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of
an international character, within the
established framework of international law,
namely, any of the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as
much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the
Court and crimes within the Uniform Code of Military Justice that would expose US personnel to the
Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the crimes were consistent with those outlined in the UCMJ
and gave strength to complementarity for the US. Small areas of potential gaps between the UCMJ and
the Rome Statute, military experts argued, could be addressed through existing military laws. [87] x x x

The report went on further to say that [a]ccording to those involved, the elements of crimes laid out in the
Rome Statute have been part of US military doctrine for decades.[88] Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held international
law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly

presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of
labor, research, and experience have made themselves peculiarly well acquainted with the subjects of
which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for the trustworthy evidence of what the law really
is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The
cited ruling inU.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92] only applies to common law
and not to the law of nations or international law. [93] Indeed, the Court in U.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases.[94] Stated
otherwise, there is no common law crime in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including international
crimes, even without any local statute.[95] In fact, years later, US courts would apply international law as a source of
criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US
Supreme Court noted that [f]rom the very beginning of its history this Court has recognized and applied the law of war
as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals.[97] It went on further to explain that Congress had not undertaken the
task of codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or
to enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by
reference the sufficiently precise definition of international law. x x x Similarly by the reference in the
15th Article of War to offenders or offenses that x x x by the law of war may be triable by such military
commissions. Congress has incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war x x x, and which may
constitutionally be included within that jurisdiction. [98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide,
war crimes and crimes against humanity have attained the status of customary international law. Some even go so far
as to state that these crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of international law as stated in the Statute of
the ICJ.[100]It is defined as the general and consistent practice of states recognized and followed by them from a sense
of legal obligation.[101] In order to establish the customary status of a particular norm, two elements must concur: State
practice, the objective element; and opinio juris sive necessitates, the subjective element.[102]

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States. [103] It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104]While, opinio juris, the psychological element, requires that the state practice or norm be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it.[105]

The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles. [107] As a result, jus cogens norms are deemed peremptory
and non-derogable.[108] When applied to international crimes, jus cogens crimes have been deemed so fundamental to
the existence of a just international legal order that states cannot derogate from them, even by agreement. [109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise jurisdiction
over an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis
for jurisdiction exists.[110] The rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community [111] and thus granting every State
jurisdiction over the crime.[112]

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute
is notdeclaratory of customary international law.

The first element of customary international law, i.e., established, widespread, and consistent practice on the
part of States,[113] does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October
12, 2010, only 114[114] States have ratified the Rome Statute, subsequent to its coming into force eight (8) years
earlier, or on July 1, 2002. The fact that 114 States out of a total of 194 [115] countries in the world, or roughly 58.76%,
have ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory international law. The numbers even tend to
argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome
Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed the
Statute, but the treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:

Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x. This statement contains the two
basic elements of custom: the material factor, that is how the states behave, and the psychological
factor or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the generality of the
practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because they
consider it obligatory to behave thus or do they do it only as a matter of courtesy?Opinio juris, or the
belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different
countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled
by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be
deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they
are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief
that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [117] Like the first
element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated
therein as evidenced by it requiring State consent. [118] Even further, the Rome Statute specifically and unequivocally
requires that: ThisStatute is subject to ratification, acceptance or approval by signatory States. [119] These clearly
negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect.
The power to enter into executive agreements has long been recognized to be lodged with the President. As We held
in Neri v. Senate Committee on Accountability of Public Officers and Investigations, [t]he power to enter into an
executive agreement is in essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.
[120]
The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative,
executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought to be in the form of a
treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No
costs.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 173034

October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,


vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M.
GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
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. 20060012 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
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers
granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State
Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially
parents and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present
Petition for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.
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);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
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.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity
of an association with that of its members. An association has standing to file suit for its workers despite its lack of
direct interest if its members are affected by the action. An organization has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts
and activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to
assert the rights of its members, because it and its members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that an association has the legal
personality to represent its members because the results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is
formed "to represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine
Government and 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 authorized9to 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
and child mortality and inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific
provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
bytransformation or incorporation.11 The transformation method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which
provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
members of the Senate." Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the
Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk
Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.
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)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary international law which are binding on all
states,17 i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity,18 a person's right to life, liberty
and due process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted principles of law" has also been
depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source of international law because they
have the "character of jus rationale" and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting
opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal systems generally" and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one

must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states followed by them from a sense of
legal obligation [opinio juris]." (Restatement) This statement contains the two basic elements of custom: the material
factor, that is, how states behave, and the psychological orsubjective factor, that is, why they behave the way they
do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine why states behave the way
they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.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.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of
such conventions or agreements, which shall come into force for each Member when accepted by it in accordance
with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a
convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall
notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it
will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual
report to the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases,
causes of death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d)
standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of
their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations
within the period stated in the notice. (Emphasis supplied)

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)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the
Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS
are merely recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions, 30 specifically providing for
exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles and practices that influence state
behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.32 It is, however, an expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management,
Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to 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 customary international law on infectious disease prevention and
control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS
and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various
departments broad powers to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of
poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still
considered not binding or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed
part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the
WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without
the need of a law enacted by the legislature.
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 breastmilk substitutes,
but instead, specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be
implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH
through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or
those from ages two years old and beyond:

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;

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 4(e). "Infant" means a person falling within


the age bracket of 0-12 months.

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;

Section 4. Declaration of Principles The following


are the underlying principles from which the revised
rules and regulations are premised upon:
a. Exclusive breastfeeding is for infants from 0 to six
(6) months.
b. There is no substitute or replacement for breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR
imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and
forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the promotion of
products within the scope of the Code, is vague:

MILK CODE

RIRR

SECTION 6. The General Public and Mothers.

Section 4. Declaration of Principles The following


are the underlying principles from which the revised
rules and regulations are premised upon:

(a) No advertising, promotion or other marketing


materials, whether written, audio or visual, for products
within the scope of this Code shall be printed,
published, distributed, exhibited and broadcast unless
such materials are duly authorized and approved by an
inter-agency committee created herein pursuant to the
applicable standards provided for in this Code.

xxxx
f. Advertising, promotions, or sponsor-ships of infant
formula, breastmilk substitutes and other related
products are prohibited.
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 13. "Total Effect" - Promotion of products
within the scope of this Code must be objective and
should not equate or make the product appear to be as
good or equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should
not directly or indirectly suggest that buying their
product would produce better individuals, or resulting in
greater love, intelligence, ability, harmony or in any
manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following
shall not be included in advertising, promotional and
marketing materials:
a. Texts, pictures, illustrations or information which
discourage or tend to undermine the benefits or
superiority of breastfeeding or which idealize the use of
breastmilk substitutes and milk supplements. In this
connection, no pictures of babies and children together
with their mothers, fathers, siblings, grandparents,
other relatives or caregivers (or yayas) shall be used in
any advertisements for infant formula and breastmilk
supplements;
b. The term "humanized," "maternalized," "close to
mother's milk" or similar words in describing breastmilk
substitutes or milk supplements;
c. Pictures or texts that idealize the use of infant and
milk formula.
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.

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) 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.
(a) The words or phrase "Important Notice" or
"Government Warning" or their equivalent;
(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:

(b) A statement of the superiority of breastfeeding;

(i) the words "Important Notice" or their equivalent;

(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;

(ii) a statement of the superiority of breastfeeding;

(c) A statement that there is no substitute for


breastmilk;

(iii) a statement that the product shall be used only on (e) Instructions for appropriate prepara-tion, and a
the advice of a health worker as to the need for its use warning against the health hazards of inappropriate
and the proper methods of use; and
preparation; and
(iv) instructions for appropriate preparation, and a
warning against the health hazards of inappropriate
preparation.

(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

SECTION 7. Health Care System.

Section 22. No manufacturer, distributor, or


representatives of products covered by the Code shall
(b) No facility of the health care system shall be used be allowed to conduct or be involved in any activity on
breastfeeding promotion, education and production of
for the purpose of promoting infant formula or other
products within the scope of this Code. This Code does Information, Education and Communication (IEC)
not, however, preclude the dissemination of information materials on breastfeeding, holding of or participating
as speakers in classes or seminars for women and
to health professionals as provided in Section 8(b).
children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 8. Health Workers. (b) Information provided by manufacturers and
distributors to health professionals regarding products
within the scope of this Code shall be restricted
to scientific and factual matters and such information
shall not imply or create a belief that bottle-feeding is
equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).

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.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of
health professionals; RIRR absolutely forbids the same.

MILK CODE

RIRR

SECTION 8. Health Workers

Section 4. Declaration of Principles

(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.

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 activitiesand 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.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE

RIRR

SECTION 6. The General Public and Mothers.

Section 51. Donations Within the Scope of This


Code - Donations of products, materials, defined and
covered under the Milk Code and these implementing
(f) Nothing herein contained shall prevent donations
from manufacturers and distributors of products within rules and regulations, shall be strictly prohibited.
the scope of this Code upon request by or with the
approval of the Ministry of Health.
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

Section 46. Administrative Sanctions. The


following administrative sanctions shall be imposed
upon any person, 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 owned by a company, including those of their
subsidiaries, are deemed to be violations of the
concerned milk company and shall not be based on the
specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.


The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code
states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products:
breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary
foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total
replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information
concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the
public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product
categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of
infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a 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 age-group 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 substitutes is
proper if based on complete and updated information." Section 8 of the RIRR also states that information and educational materials
should include information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be
proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to
deal first with the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers
delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it..48 However, health information,
particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area
for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was already within the ambit of the
regulatory powers of the predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases."
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
(4) To exercise such other powers and functions as may be necessary for or incidental to the attainment of the
purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use 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)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--visbreastmilk substitutes,
supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5)
where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of its use;
the health hazards of inappropriate foods or feeding methods; and, in particular, the health 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.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of 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-a-vis 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:
a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes and

breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes,
including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on infant
feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or
text which may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary
or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but such information should
be restricted to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and
idealize the use of infant formula.
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
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of 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
5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not
to containers and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk
companies and distributors are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and
yet be allowed to display on the containers and labels of their products the exact opposite message. That askewed interpretation of the
Milk Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding breastmilk vis-avis breastmilk substitutes be consistent, at the same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk,
is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x

xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular, the health 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.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of
this Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby
created:

Minister of Health

-------------------

Chairman

Minister of Trade and Industry

-------------------

Member

Minister of Justice

-------------------

Member

Minister of Social Services and Development

-------------------

Member

The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section
6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
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.
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:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition
because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or
marketing materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be
allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that
breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that
processes and evaluates because there may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.
xxxx

ASSOCIATE JUSTICE SANTIAGO:


Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and
promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the
rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the
Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children
two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15,
Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your
Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2)
years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been
set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not undermine
breastmilk and breastfeeding, Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising,
promotional, or other marketing materials 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:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5)
where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods of feeding methods; and, in particular, the health 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.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief that bottle
feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section 5(b).
xxxx
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.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use 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:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be objective and should not equate or
make the product appear to be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any
case undermine breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that buying their product
would produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health
to the baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single
provision, the DOH exercises control over the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC
may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public
convenience and welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency
between the provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code,
allows dissemination of information to health professionals but suchinformation is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on
scientific and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the products covered by the
Code in activities for the promotion, education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended forwomen and children. Said provision cannot be construed to encompass even the dissemination
of information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and distributors to extend assistance in
research and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same.
Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body
in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity
in relation to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that
under Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of
the 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 thatresearch 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 researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code
provides that donations may be made by manufacturers and distributors of breastmilk substitutesupon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then appropriately exercised its discretion through Section 5175 of the RIRR
which sets forth its policy not to request or approve donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered
by the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As
reasoned out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can
be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does
not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds
petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring difference in said case and the
present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted
by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the
same law the power to review on appeal the order or decision of the CAA 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, the president, general manager, or the partners and/or the persons
directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer, or
marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the
rules and regulations issued pursuant to this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these
revised rules and implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations
which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers.78 Such express grant of rule-making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and adjusting the details and manner
by which they are to implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is a standard

provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or
modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk
Code and, therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is
offensive to the due process clause of the Constitution, insofar as the same is in restraint of trade and because a
provision therein is inadequate to provide the public with a comprehensible basis to determine whether or not they have
committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that suppress the trade of milk and,
thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public
interest must be upheld over business interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority,despite the fact
that "our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the
power to intervene whenever necessary to promote the general welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that
"free enterprise does not call for removal of protective regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and
underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section 4(i)),
classes and seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and
the giving of donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that
the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the
definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their
representatives who promote or otherwise advance their commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this Code. A "primary
distributor" is a manufacturer's sales agent, representative, national distributor or broker.
xxxx
(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.
Notably, the definition in the RIRR merely merged together under the term "milk company" the entities defined separately under the Milk
Code as "distributor" and "manufacturer." The RIRR also enumerated in Section 5(w) the products manufactured or distributed by an
entity that would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase "products within the scope of this
Code." Those are the only differences between the definitions given in the Milk Code and the definition as re-stated in the RIRR.
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.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12,
2006 are declared NULL and VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No.
2006-0012 is concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, Tinga, ChicoNazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Republic of the Philippines


Supreme Court
Manila
EN BANC

CHINA NATIONAL MACHINERY & EQUIPMENT CORP.


(GROUP),

G.R. No. 185572

Petitioner,
Present:
versus

CORONA, C.J.,
CARPIO,
VELASCO, JR.,

HON. CESAR D. SANTAMARIA, in his official


capacity as Presiding Judge of Branch 145,
Regional Trial Court of Makati City, HERMINIO
HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROGER
R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER
FRANCISCO C. BOLASTIG, LEAGUE OF URBAN
POOR FOR ACTION (LUPA), KILUSAN NG
MARALITA
SA
MEYCAUAYAN
(KMM-LUPA
CHAPTER), DANILO M. CALDERON, VICENTE C.
ALBAN, MERLYN M. VAAL, LOLITA S. QUINONES,
RICARDO D. LANOZO, JR., CONCHITA G. GOZO,
MA. TERESA D. ZEPEDA, JOSEFINA A. LANOZO,
and SERGIO C. LEGASPI, JR., KALIPUNAN NG
DAMAYANG
MAHIHIRAP
(KADAMAY),
EDY
CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO,
CARMEN DEUNIDA, and EDUARDO LEGSON,
Respondents.

LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

February 7, 2012

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

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Preliminary Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of the
Court of Appeals (CA) in CAG.R. SP No. 103351. [1]
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its
chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway
line from Manila to San Fernando, La Union (the Northrail Project). [2]
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the
Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend
Preferential Buyers Credit to the Philippine government to finance the Northrail Project. [3] The Chinese government
designated EXIM Bank as the lender, while the Philippine government named the DOF as the borrower. [4] Under the Aug
30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20
years, with a 5-year grace period, and at the rate of 3% per annum. [5]
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF
Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime Contractor for the
Northrail Project.[6]
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I
of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). [7] The
contract price for the Northrail Project was pegged at USD 421,050,000. [8]
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial
agreement Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). [9] In the Loan Agreement, EXIM Bank
agreed to extend Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine government in
order to finance the construction of Phase I of the Northrail Project. [10]
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent
Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of
Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the
DOF, the Department of Budget and Management, the National Economic Development Authority and Northrail. [11] The
case was docketed as Civil Case No. 06-203 before the Regional Trial Court, National Capital Judicial Region, Makati
City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the Loan
Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise
known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise known as the
Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code. [12]
RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive
reliefs.[13] On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order. [14] Before RTC Br. 145
could rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the trial court did not have
jurisdiction over (a) its person, as it was an agent of the Chinese government, making it immune from suit, and (b) the
subject matter, as the Northrail Project was a product of an executive agreement. [15]
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the
case for summary hearing to determine whether the injunctive reliefs prayed for should be issued. [16] CNMEG then filed
a Motion for Reconsideration, [17] which was denied by the trial court in an Order dated 10 March 2008. [18] Thus, CNMEG
filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction
dated 4 April 2008.[19]

[20]

In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for Certiorari.
Subsequently, CNMEG filed a Motion for Reconsideration, [21] which was denied by the CA in a Resolution dated 5

December 2008.[22] Thus, CNMEG filed the instant Petition for Review on Certiorari dated 21 January 2009, raising the
following issues:[23]
Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.

Whether or not the Northrail contracts are products of an executive agreement between two
sovereign states.

Whether or not the certification from the Department of Foreign Affairs is necessary under
the foregoing circumstances.

Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.

Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.

Whether or not the Northrail Project is subject to competitive public bidding.

Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri
case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It likewise
requests this Court for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain public respondent
from proceeding with the disposition of Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1.
2.

Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by
or before a local court.

First issue: Whether CNMEG is entitled to immunity

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,[24] to wit:
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. (Emphasis supplied; citations omitted.)

xxx xxx xxx

The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is particularly true with respect to the Communist states which took
control of nationalized business activities and international trading.

In JUSMAG v. National Labor Relations Commission, [25] this Court affirmed the Philippines adherence to the
restrictive theory as follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that sovereign states may, at all times,
be sued in local courts. The complexity of relationships between sovereign states, brought about by their
increasing commercial activities, mothered a more restrictive application of the doctrine.

xxx xxx xxx

As
it
stands
now,
the
application
of
the
doctrine
of
immunity
from
suit
has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be extended
to commercial, private and proprietary acts (jure gestionis).[26](Emphasis supplied.)

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved
whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United
States of America v. Ruiz[27]
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does
not apply where the contract relates to the exercise of its sovereign functions. [28]

A.

CNMEG is engaged in a proprietary activity.

A threshold question that must be answered is whether CNMEG performs governmental or proprietary functions.
A thorough examination of the basic facts of the case would show that CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz:[29]
WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos,
section I, Phase I of Philippine North Luzon Railways Project (hereinafter referred to as THE PROJECT);

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including
design, manufacturing, supply, construction, commissioning, and training of the Employers personnel;

AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import
Bank of China and Department of Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.

The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the
construction of the Luzon railways was meant to be a proprietary endeavor. In order to fully understand the intention
behind and the purpose of the entire undertaking, the Contract Agreement must not be read in isolation. Instead, it
must be construed in conjunction with three other documents executed in relation to the Northrail Project, namely: (a)
the Memorandum of Understanding dated 14 September 2002 between Northrail and CNMEG; [30] (b) the letter of Amb.
Wang dated 1 October 2003 addressed to Sec. Camacho; [31] and (c) the Loan Agreement.[32]

1.

Memorandum of Understanding dated 14 September 2002

The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction of
the Luzon Railways as a proprietary venture. The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability, professional competence and technical
expertise to assess the state of the [Main Line North (MLN)] and recommend implementation plans as
well as undertake its rehabilitation and/or modernization;

WHEREAS, CNMEG has expressed interest in the rehabilitation and/or


modernization of the MLN from Metro Manila to San Fernando, La Union passing through the
provinces of Bulacan, Pampanga, Tarlac, Pangasinan and La Union (the Project);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a Feasibility


Study (the Study) at no cost to NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in undertaking


the Project with Suppliers Credit and intends to employ CNMEG as the Contractor for the
Project subject to compliance with Philippine and Chinese laws, rules and regulations for
the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to the


Government of the Republic of thePhilippines and has therefore agreed to assist CNMEG in the
conduct of the aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1

As soon as possible after completion and presentation of the Study in accordance with
Paragraphs 1.3 and 1.4 above and in compliance with necessary governmental laws, rules,
regulations and procedures required from both parties, the parties shall commence the
preparation and negotiation of the terms and conditions of the Contract (the Contract) to be
entered into between them on the implementation of the Project. The parties shall use
their best endeavors to formulate and finalize a Contract with a view to signing

the Contract within one hundred twenty (120) days from CNMEGs presentation of
the Study.[33](Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study
was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese
government, but was plainly a business strategy employed by CNMEG with a view to securing this commercial
enterprise.

2.

Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb. Wang in his
letter dated 1 October 2003, thus:
1.
CNMEG has the proven competence and capability to undertake the Project as
evidenced by the ranking of 42 given by the ENR among 225 global construction companies.

2.
CNMEG already signed an MOU with the North Luzon Railways Corporation last
September 14, 2000 during the visit of Chairman Li Peng. Such being the case, they have already
established an initial working relationship with your North Luzon Railways Corporation. This would
categorize CNMEG as the state corporation within the Peoples Republic of China which
initiated our Governments involvement in the Project.

3.
Among the various state corporations of the Peoples Republic of China, only
CNMEG has the advantage of being fully familiar with the current requirements of the Northrail
Project having already accomplished a Feasibility Study which was used as inputs by the North
Luzon Railways Corporation in the approvals (sic) process required by the Republic of
the Philippines.[34] (Emphasis supplied.)

Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business
as a global construction company. The implementation of the Northrail Project was intended to generate profit for
CNMEG, with the Contract Agreement placing a contract price of USD 421,050,000 for the venture. [35] The use of the term
state corporation to refer to CNMEG was only descriptive of its nature as a government-owned and/or -controlled
corporation, and its assignment as the Primary Contractor did not imply that it was acting on behalf of China in the
performance of the latters sovereign functions. To imply otherwise would result in an absurd situation, in which all
Chinese corporations owned by the state would be automatically considered as performing governmental activities,
even if they are clearly engaged in commercial or proprietary pursuits.

3.

The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was signed
by the Philippine and Chinese governments, and its assignment as the Primary Contractor meant that it was bound to
perform a governmental function on behalf of China. However, the Loan Agreement, which originated from the same Aug
30 MOU, belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the
Borrower constitute, and the Borrowers performance of and compliance with its obligations under this
Agreement will constitute, private and commercial acts done and performed for commercial
purposes under the laws of the Republic of the Philippines and neither the Borrower nor any
of its assets is entitled to any immunity or privilege (sovereign or otherwise) from suit,
execution or any other legal process with respect to its obligations under this Agreement, as
the case may be, in any jurisdiction. Notwithstanding the foregoing, the Borrower does not waive
any immunity with respect of its assets which are (i) used by a diplomatic or consular mission of the

Borrower and (ii) assets of a military character and under control of a military authority or defense
agency and (iii) located in the Philippines and dedicated to public or governmental use (as distinguished
from patrimonial assets or assets dedicated to commercial use). (Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to
enforce this Agreement, the choice of the laws of the Peoples Republic of China as the governing law
hereof will be recognized and such law will be applied. The waiver of immunity by the Borrower, the
irrevocable submissions of the Borrower to the non-exclusive jurisdiction of the courts of the Peoples
Republic of China and the appointment of the Borrowers Chinese Process Agent is legal, valid, binding
and enforceable and any judgment obtained in the Peoples Republic of China will be if introduced,
evidence for enforcement in any proceedings against the Borrower and its assets in the Republic of the
Philippines provided that (a) the court rendering judgment had jurisdiction over the subject matter of the
action in accordance with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the
judgment of the court was not obtained through collusion or fraud, and (d) such judgment was not based
on a clear mistake of fact or law.[36]

Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to
which it or its property may at any time be or become entitled, whether characterized as sovereign
immunity or otherwise, from any suit, judgment, service of process upon it or any agent, execution on
judgment, set-off, attachment prior to judgment, attachment in aid of execution to which it or its assets
may be entitled in any legal action or proceedings with respect to this Agreement or any of the
transactions contemplated hereby or hereunder. Notwithstanding the foregoing, the Borrower does not
waive any immunity in respect of its assets which are (i) used by a diplomatic or consular mission of the
Borrower, (ii) assets of a military character and under control of a military authority or defense agency
and (iii) located in the Philippines and dedicated to a public or governmental use (as distinguished from
patrimonial assets or assets dedicated to commercial use).[37]

Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank
was mandated by the Chinese government, and not because of any motivation to do business in the Philippines, [38] it is
clear from the foregoing provisions that the Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the
Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification
of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the
entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to classify the whole venture as
commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding
dated 14 September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal the desire
of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course
of its business.

B.
CNMEG failed to adduce evidence that it is immune
from suit under Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such claim does not automatically vest
it with immunity. This view finds support in Malong v. Philippine National Railways, in which this Court held that
(i)mmunity from suit is determined by the character of the objects for which the entity was organized.[39]
In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v. CA[40] must be
examined. In Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation Agreement,
pursuant to which both signed an arrangement promoting the Social Health InsuranceNetworking and Empowerment
(SHINE) project. The two governments named their respective implementing organizations: the Department of Health
(DOH) and the Philippine Health Insurance Corporation (PHIC) for the Philippines, and GTZ for the implementation
of Germanys contributions. In ruling that GTZ was not immune from suit, this Court held:

The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several indisputable
facts. The SHINE project was implemented pursuant to the bilateral agreements between the Philippine and German
governments. GTZ was tasked, under the 1991 agreement, with the implementation of the contributions of the German
government. The activities performed by GTZ pertaining to the SHINE project are governmental in nature, related as they are
to the promotion of health insurance in thePhilippines. The fact that GTZ entered into employment contracts with the private
respondents did not disqualify it from invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set
forth what remains valid doctrine:

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.

Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not performing
proprietary functions notwithstanding its entry into the particular employment contracts. Yet there is an equally fundamental premise
which GTZ and the OSG fail to address, namely: Is GTZ, by conception, able to enjoy the Federal Republics immunity from suit?

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9, Article XVI
of the Constitution, which states that the State may not be sued without its consent. Who or what consists of the State? For one,
the doctrine is available to foreign States insofar as they are sought to be sued in the courts of the local State, necessary as it is to
avoid unduly vexing the peace of nations.

If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt that it is
a suit brought against a State, and the only necessary inquiry is whether said State had consented to be sued. However, the present
suit was brought against GTZ. It is necessary for us to understand what precisely are the parameters of the legal personality of
GTZ.
Counsel for GTZ characterizes GTZ as the implementing agency of the Government
of the Federal Republic of Germany, a depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with the ability to invoke
State immunity from suit. The distinction lies in whether the agency is incorporated or
unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law. The special law can take
the form of the original charter of the incorporated government agency. Jurisprudence is replete with
examples of incorporated government agencies which were ruled not entitled to invoke immunity from
suit, owing to provisions in their charters manifesting their consent to be sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it had designated two entities, the
Department of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing
agencies in behalf of the Philippines. The PHIC was established under Republic Act No. 7875, Section 16 (g)
of which grants the corporation the power to sue and be sued in court. Applying the previously cited
jurisprudence, PHIC would not enjoy immunity from suit even in the performance of its functions connected
with SHINE, however, (sic) governmental in nature as (sic) they may be.

Is GTZ an incorporated agency of the German government? There is some mystery surrounding that question.
Neither GTZ nor the OSG go beyond the claim that petitioner is the implementing agency of the Government of the
Federal Republic of Germany. On the other hand, private respondents asserted before the Labor Arbiter that GTZ was a
private corporation engaged in the implementation of development projects. The Labor Arbiter accepted that claim in his Order
denying the Motion to Dismiss, though he was silent on that point in his Decision. Nevertheless, private respondents argue in
their Comment that the finding that GTZ was a private corporation was never controverted, and is therefore deemed admitted. In
its Reply, GTZ controverts that finding, saying that it is a matter of public knowledge that the status of petitioner GTZ is that of
the implementing agency, and not that of a private corporation.

In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a private
corporation, and the Labor Arbiter acted rashly in accepting such claim without explanation. But neither has GTZ supplied any
evidence defining its legal nature beyond that of the bare descriptive implementing agency. There is no doubt that the 1991
Agreement designated GTZ as the implementing agency in behalf of the German government. Yet the catch is that such
term has no precise definition that is responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the
GTZ can be said to act in behalf of the German state. But that is as far as implementing agency could take us. The term by
itself does not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state or by
private interests, whether it has juridical personality independent of the German government or none at all.

xxx xxx xxx

Again, we are uncertain of the corresponding legal implications under German law surrounding a private
company owned by the Federal Republic of Germany. Yet taking the description on face value, the apparent equivalent
under Philippine law is that of a corporation organized under the Corporation Code but owned by the Philippine
government, or a government-owned or controlled corporation without original charter. And it bears notice that Section 36
of the Corporate Code states that [e]very corporation incorporated under this Code has the power and capacity x x x to sue
and be sued in its corporate name.

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been vested or has
been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings below and before this Court, GTZ
has failed to establish that under German law, it has not consented to be sued despite it being owned by the Federal
Republic of Germany. We adhere to the rule that in the absence of evidence to the contrary, foreign laws on a particular
subject are presumed to be the same as those of the Philippines, and following the most intelligent assumption we can
gather, GTZ is akin to a governmental owned or controlled corporation without original charter which, by virtue of the
Corporation Code, has expressly consented to be sued. At the very least, like the Labor Arbiter and the Court of Appeals, this
Court has no basis in fact to conclude or presume that GTZ enjoys immunity from suit.[41](Emphasis supplied.)

Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity from
suit, even if it contends that it performs governmental functions. Its designation as the Primary Contractor does not
automatically grant it immunity, just as the term implementing agency has no precise definition for purposes of
ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a government-owned corporation, it
failed to adduce evidence that it has not consented to be sued under Chinese law. Thus, following this Courts ruling

in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to be presumed to be a governmentowned and -controlled corporation without an original charter. As a result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code.

C.
CNMEG failed to
Department of Foreign Affairs.

present

a certification from

the

In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by the Executive that an entity is
entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts, to wit:
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, itrequests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to
immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its
endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the
respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48
SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1
(1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the
Commander of the United States Naval Base at Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor
General embodied the suggestion in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be
allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of
petitioners claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through
their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the
Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions
involved.[43] (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a determination of immunity from suit,
which may be considered as conclusive upon the courts. This Court, in Department of Foreign Affairs (DFA) v. National Labor
Relations Commission (NLRC),[44] emphasized the DFAs competence and authority to provide such necessary determination, to
wit:
The DFAs function includes, among its other mandates, the determination of
persons and institutions covered by diplomatic immunities, a determination which, when
challenge, (sic) entitles it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever
necessary or advisable to enable it to help keep the credibility of the Philippine government before the
international community. When international agreements are concluded, the parties thereto

are deemed to have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded. In our country, this task falls principally of (sic) the DFA as
being the highest executive department with the competence and authority to so act in
this aspect of the international arena.[45] (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling in Deutsche
Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to secure from
the Department of Foreign Affairs a certification of respondents diplomatic status and entitlement to diplomatic privileges including
immunity from suits. The requirement might not necessarily be imperative. However, had GTZ obtained such certification from
the DFA, it would have provided factual basis for its claim of immunity that would, at the very least, establish a disputable
evidentiary presumption that the foreign party is indeed immune which the opposing party will have to overcome with its
own factual evidence. We do not see why GTZ could not have secured such certification or endorsement from the DFA for
purposes of this case. Certainly, it would have been highly prudential for GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this juncture, we do not see any evidence that the DFA, the office of the executive
branch in charge of our diplomatic relations, has indeed endorsed GTZs claim of immunity. It may be possible that GTZ
tried, but failed to secure such certification, due to the same concerns that we have discussed herein.

Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this
Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted in Holy See
referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign office in the Philippines
being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it manifested that the DFA has
endorsed GTZs claim, or that the OSG had solicited the DFAs views on the issue. The arguments raised by the OSG are
virtually the same as the arguments raised by GTZ without any indication of any special and distinct perspective maintained by
the Philippine government on the issue. The Comment filed by the OSG does not inspire the same degree of confidence as a
certification from the DFA would have elicited.[46] (Emphasis supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of the Embassy of the Peoples Republic
of China, stating that the Northrail Project is in pursuit of a sovereign activity.[47] Surely, this is not the kind of certification that can establish CNMEGs
entitlement to immunity from suit, as Holy See unequivocally refers to the determination of the Foreign Office of the state where it is sued.
Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and the Office of the Government
Corporate Counsel (OGCC), which must be respected by the courts. However, as expressly enunciated inDeutsche Gesellschaft, this determination by the
OSG, or by the OGCC for that matter, does not inspire the same degree of confidence as a DFA certification. Even with a DFA certification, however, it
must be remembered that this Court is not precluded from making an inquiry into the intrinsic correctness of such certification.

D.
An agreement to submit any dispute to arbitration may
be construed as an implicit waiver of immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of state
immunity. In the said law, the agreement to submit disputes to arbitration in a foreign country is construed as an implicit
waiver of immunity from suit. Although there is no similar law in the Philippines, there is reason to apply the legal
reasoning behind the waiver in this case.
The Conditions of Contract,[48] which is an integral part of the Contract Agreement,[49] states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION

33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or controversies arising from this
Contract before the commencement of arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which cannot be settled between the
Employer and the Contractor shall be submitted to arbitration in accordance with the UNCITRAL
Arbitration Rules at present in force and as may be amended by the rest of this Clause. The appointing
authority shall be Hong Kong International Arbitration Center. The place of arbitration shall be in Hong
Kong at Hong Kong International Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound to submit
the matter to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of Northrail, its enforcement in
thePhilippines would be subject to the Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof
provides for the Recognition and Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules,
the party to arbitration wishing to have an arbitral award recognized and enforced in the Philippines must petition the
proper regional trial court (a) where the assets to be attached or levied upon is located; (b) where the acts to be enjoined
are being performed; (c) in the principal place of business in the Philippines of any of the parties; (d) if any of the parties
is an individual, where any of those individuals resides; or (e) in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit. Thus, the
courts have the competence and jurisdiction to ascertain the validity of the Contract Agreement.

Second issue: Whether the Contract Agreement is an executive


agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows:
[A]n international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the
former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of
subject matters.[50]
Despite these differences, to be considered an executive agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be
written; and (c) it must governed by international law. The first and the third requisites do not obtain in the case at bar.

A.

CNMEG is neither a government nor a government agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail and
CNMEG.[51] By the terms of the Contract Agreement, Northrail is a government-owned or -controlled corporation, while
CNMEG is a corporation duly organized and created under the laws of the Peoples Republic of China. [52] Thus, both
Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the
Philippine and Chinese governments, respectively.

Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the fact
that Amb. Wang, in his letter dated 1 October 2003,[53] described CNMEG as a state corporation and declared its
designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign functions on
behalf of China. That label was only descriptive of its nature as a state-owned corporation, and did not preclude it from
engaging in purely commercial or proprietary ventures.

B.
law.

The Contract Agreement is to be governed by Philippine

Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the Contract Agreement is an integral part of
the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in accordance with the laws of
the Philippines.

The contract shall be written in English language. All correspondence and other documents
pertaining to the Contract which are exchanged by the parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature of an
executive agreement. It is merely an ordinary commercial contract that can be questioned before the local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is
not entitled to immunity from suit, and the Contract Agreement is not an executive agreement. CNMEGs prayer for the
issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and academic. This case
is REMANDED to the Regional Trial Court of Makati, Branch 145, for further proceedings as regards the validity of the
contracts subject of Civil Case No. 06-203.
No pronouncement on costs of suit.
SO ORDERED.

EN BANC
DR. RUBI LI,
Petitioner,

G.R. No. 165279


Present:

- versus -

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
SPOUSES REYNALDO and LINA SOLIMAN, as Promulgated:
parents/heirs of deceased Angelica Soliman,
Respondents.
June 7, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision [1] dated June 15, 2004 as well as the Resolution[2] datedSeptember 1, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision [3] dated September 5, 1997 of
the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Lukes
Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic type,[4] a high-grade (highly malignant) cancer
of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was amputated by Dr.
Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr.
Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after the (intravenous)
administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their
hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated the cause of death as Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation. [5]
On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit [7] against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC.
Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their careless administration of the
chemotherapy drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping
early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy ( Magiging normal na ang anak
nyo basta ma-chemo. 95% ang healing) and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness
(Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus claimed that they would not have given their consent to chemotherapy
had petitioner not falsely assured them of its side effects.
In her answer,[8] petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully
explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal body parts, including the lowering of
white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind
after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and
functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events
(sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in
the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the
declarations of petitioner and respondents themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas condition. Petitioner told
respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were

apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 toP150,000.00 a year from his jewelry and watch repairing
business.[9] Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the
naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not
give the respondents any assurance that chemotherapy will cure Angelicas cancer.During these consultations with respondents, she explained the
following side effects of chemotherapy treatment to respondents:(1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white
blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and
kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after
the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long distance. [10] This was disputed by respondents who
countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only side
effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of chemotherapy treatment mentioned by petitioner.[12]
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests
requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function tests. [13] Petitioner proceeded with the
chemotherapy by first administering hydration fluids to Angelica. [14]
The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin, [15] Doxorubicin[16]and
Cosmegen[17] intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella [18] and Dr. Grace Arriete.[19] In his testimony, Dr.
Marbella denied having any participation in administering the said chemotherapy drugs. [20]
On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas face. [21] They asked petitioner
about it, but she merely quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes on the nose and cheek area of
Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter. [23]
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus.
This time, the reddish discoloration on Angelicas face had extended to her neck, but petitioner dismissed it again as merely the effect of medicines.
[24]
Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed
that Angelica merely complained of nausea and was given ice chips. [25]
On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear the pain, respondents
pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan
uli ng chemo. At this point, respondents asked petitioners permission to bring their child home. Later in the evening, Angelica passed black stool and
reddish urine.[26] Petitioner countered that there was no record of blackening of stools but only an episode of loose bowel movement
(LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it
(petitioner described it in the vernacular as naninigas ang kamay at paa). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided. [27]
The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging Angelica,
petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while
she observes Angelicas muscle twitching and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to
respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after
two weeks, but respondents can see her anytime if any immediate problem arises. [28]
However, Angelica remained in confinement because while still in the premises of SLMC, her convulsions returned and she also had
LBM. Angelica was given oxygen and administration of calcium continued. [29]
The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a fever and had
difficulty breathing.[30] Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around4:50 that afternoon, Angelica developed
difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the patient at a stat
dose. She further ordered that Angelica be given Bactrim,[31] a synthetic antibacterial combination drug,[32] to combat any infection on the childs body.[33]
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner
what was happening to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then transfused to
Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner prescribed
Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to
Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner
also denied that there were gadgets attached to Angelica at that time. [34]

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents
claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening, which petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body.
An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh
whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may induce
further bleeding.[35] She was also transferred to the intensive care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelicas skin was
also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying Ayaw ko na; there
were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the latter could
not answer her anymore. [36] At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were
down and respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case,
Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being suctioned from
her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her chest.
Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica
requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they
could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could
not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three
oclock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and supposedly told
respondents that there was malfunction or bogged-down machine. [37]
By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelicas skin was indeed
sloughing off.[38] She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube. [39] On September 1, exactly two weeks after being
admitted at SLMC for chemotherapy, Angelica died. [40] The cause of death, according to petitioner, was septicemia, or overwhelming infection, which
caused Angelicas other organs to fail.[41] Petitioner attributed this to the patients poor defense mechanism brought about by the cancer itself. [42]
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and called him
names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill. [43]
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who conducted
the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH)
Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the
abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the
heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due
to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of hypovolemic shock secondary to multiple organ hemorrhages and
disseminated intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which
caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of Angelica
(from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also
die of osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted
that she is not a pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly
said that if the victim already had DIC prior to the chemotherapy, the hospital staff could have detected it. [44]
On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives every known side
effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his relatives to such procedure or
therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients condition and his knowledge of the general
effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all
known side effects based on studies and observations, even if such will aggravate the patients condition. [45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He explained that in
case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is
not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths
occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are
the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr.
Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of
Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer
cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this
type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case,
the patient developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan.
On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation because he did not see them anymore after follow-up; it is either they died or had seen
another doctor.[46]

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed
her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the
testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this
case was afflicted with a very aggressive type of cancer necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid
down in Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the
patient, adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount
of P139,064.43.[48]
Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed by the petitioner in the
administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all
the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of
chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -such as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided
differently or adopted a different course of action which could have delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she
undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the
chemotherapy treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of
survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible
side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death
of Angelica. The appellants were clearly and totally unaware of these other side-effects which manifested only during the
chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelicas
condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi
Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and
suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to
their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the
extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:
1.

Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

2.

Moral damages of P200,000.00;

3.

Exemplary damages of P50,000.00;

4.

Attorneys fee of P30,000.00.

SO ORDERED.[49] (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the
chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees.Petitioner emphasized that she
was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to
be all-knowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to
a competent doctor, petitioner cannot possibly predict how a particular patients genetic make-up, state of mind, general health and body constitution
would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that
Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner asserts that she did everything within her professional
competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the
Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged
with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer
itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so
that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus,
without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer
cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or
into her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these complications.The patient
would have been deprived of the chance to survive the ailment, of any hope for life and her quality of life surely compromised. Since she had not
been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the damages suffered by the respondents. [50]
The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient
who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a
victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully
pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that
failure or action caused injury to the patient. [51]
This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems
from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating,
hence the indispensability of expert testimonies. [52]
In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy
drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not
qualified to give expert opinion as to whether petitioners lack of skill, knowledge and professional competence in failing to observe the standard of
care in her line of practice was the proximate cause of the patients death.Furthermore, respondents case was not at all helped by the non-production
of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable
for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law.As early as 1767,
doctors were charged with the tort of battery (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients
prior to performing a surgery or procedure. In the United States, the seminal case wasSchoendorff v. Society of New York Hospital [53] which involved
unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any
medical procedure or treatment: Every human being of adult years and sound mind has a right to determine what shall be done with his own body;
and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in damages. [54] From a purely ethical
norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the
probable benefits.[55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the
decision on revelation to the physician alone. Thus, respect for the patients right of self-determination on particular therapy demands a standard set
by law for physicians rather than one which physicians may or may not impose upon themselves. [57] The scope of disclosure is premised on the fact
that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians
responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right
to expect. Indeed, the patients reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated
with armslength transactions. [58] The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a
reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to
him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment. [59] As to the issue of demonstrating
what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a
patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been
made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice
actions generally, there must be a causal relationship between the physicians failure to divulge and damage to the patient. [60]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physicians overall obligation to patient, the duty of
reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the
physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or
treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent. [62] The court thus
concluded that the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in
making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the patients need, and that need is
whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality to the
patients decision.[63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must
be causal relationship between physicians failure to inform and the injury to patient and such connection arises only if it is established that, had
revelation been made, consent to treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: (1) the physician had a
duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. The
gravamen in an informed consent case requires the plaintiff to point to significant undisclosed information relating to the treatment which would have
altered her decision to undergo it.[64]
Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure
performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial treatment and amputation of
Angelicas lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the
respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets,
possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very
well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of
chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn
from the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their
daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told them of
95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to
have falsely assured patients of chemotherapys success rate.Besides, informed consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary. [65]
The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable
in all instances. Further, in a medical malpractice action based on lack of informed consent, the plaintiff must prove both the duty and the breach of
that duty through expert testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice as that of
the defendant doctor.[67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services
charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for
chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in
cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be
an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic
impetus to cure, the law defining adequate disclosure has undergone a dynamic evolution. A standard once guided solely by the
ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This
change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever
encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is
needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they
are determined by social norms, expanding and contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to
construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting
point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each
case. Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by
what they perceive as the common expectation of the medical consumera reasonable person in the patients position when
deciding to accept or reject a recommended medical procedure. [68] (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1,
2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 isREINSTATED
and UPHELD.
No costs.
SO ORDERED.

Republic of the Philippines


Supreme Court
Baguio

THIRD DIVISION

THE SECRETARY OF JUSTICE,

G.R. No. 166199

THE EXECUTIVE SECRETARY


and THE BOARD OF

Present:

COMMISSIONERS OF THE
BUREAU OF IMMIGRATION,
Petitioners,

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,

- versus -

NACHURA, and
PERALTA, JJ.

CHRISTOPHER KORUGA,
Respondent.

Promulgated:
April 24, 2009

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

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision[1] dated September
14, 2004and the Resolution[2] dated November 24, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 76578. The assailed Decision
set aside the Resolution dated April 1, 2003 of the Secretary of the Department of Justice (DOJ) and the Judgment dated February 11,
2002 of the Board of Commissioners (BOC) of the Bureau of Immigration (BI), and dismissed the deportation case filed against
Christopher Koruga (respondent), an American national, for violation of Section 37(a)(4) of Commonwealth Act No. 613, as amended,
otherwise known as the Philippine Immigration Act of 1940; while the assailed Resolution denied petitioners' Motion for
Reconsideration.

The factual background of the case is as follows:

Sometime in August 2001, then BI Commissioner Andrea Domingo received an anonymous letter [3] requesting the deportation of
respondent as an undesirable alien for having been found guilty of Violation of the Uniform Controlled Substances Act in the State of
Washington, United States of America (USA) for attempted possession of cocaine sometime in 1983.

On the basis of a Summary of Information, [4] the Commissioner issued Mission Order No. ADD-01-162[5] on September 13,
2001 directing Police Superintendent (P/Supt.) Lino G. Caligasan, Chief of the Intelligence Mission and any available BI Special Operations
Team Member to conduct verification/ validation of the admission status and activities of respondent and effect his immediate arrest if he
is found to have violated the Philippine Immigration Act of 1940, as amended.

On September 17, 2001, respondent was arrested and charged before the Board of Special Inquiry (BSI) for violation of Section 37(a)
(4) of the Philippine Immigration Act of 1940, as amended. The case was docketed as BSI-D.C. No. ADD-01-126. The Charge Sheet
reads:

On September 17, 2001, at about 10:00 A.M., respondent was arrested by Intelligence operatives at his residence,
located at 1001 MARBELLA CONDOMINIUM II, Roxas Boulevard, Malate, Manila, pursuant to Mission Order No.
ADD-01-162;

That respondent was convicted and/or sentenced for Uniform Controlled Substance Act in connection with his being
Drug Trafficker and/or Courier of prohibited drugs in the State of Washington, United States of America, thus,
making him an undesirable alien and/or a public burden in violation of Sec. 37(4) [sic] of the Philippine Immigration
Act of 1940, as amended.

CONTRARY TO LAW.[6]

On September 28, 2001, after filing a Petition for Bail [7] and Supplemental Petition for Bail,[8] respondent was granted bail and
provisionally released from the custody of the BI.[9]

Following the submission of respondent's Memorandum[10] and the BI Special Prosecutor's Memorandum,[11] the BOC rendered a
Judgment[12] dated February 11, 2002 ordering the deportation of respondent under Section 37(a)(4) of the Philippine Immigration Act
of 1940, as amended.

On February 26, 2002, respondent filed a Motion for Reconsideration,[13] but it was denied by the BOC in a Resolution dated March
19, 2002.

Unaware that the BOC already rendered its Resolution dated March 19, 2002, respondent filed on April 2, 2002, a Manifestation and
Notice of Appeal Ex Abundanti Cautelam[14] with the Office of the President, which referred[15] the appeal to the DOJ.

On April 1, 2003, then DOJ Secretary Simeon A. Datumanong rendered a Resolution [16] dismissing the appeal. On April 15, 2003,
respondent filed a Motion for Reconsideration[17] which he subsequently withdrew[18] on April 23, 2003.

On April 24, 2003, respondent filed a Petition for Certiorari and Prohibition[19]
with the CA, docketed as CA-G.R. SP No. 76578, seeking to set aside the Resolution dated April 1, 2003 of the DOJ Secretary and the
Judgment dated February 11, 2002 of the BOC.

On September 14, 2004, the CA rendered a Decision[20] setting aside the Resolution dated April 1, 2003 of the DOJ Secretary and the
Judgment dated February 11, 2002 of the BOC and dismissing the deportation case filed against respondent. The CA held that there
was no valid and legal ground for the deportation of respondent since there was no violation of Section 37(a)(4) of the Philippine
Immigration Act of 1940, as amended, because respondent was not convicted or sentenced for a violation of the law on prohibited
drugs since the U.S. Court dismissed the case for violation of the Uniform Controlled Substances Act in the State of Washington, USA
filed against respondent; that petitioners further failed to present or attach to their pleadings any document which would support
their allegations that respondent entered into a plea bargain with the U.S. Prosecutor for deferred sentence nor did they attach to the
record the alleged order or judgment of the U.S. Court which would show the conviction of respondent for violation of the prohibited
drugs law in the USA; that even if respondent was convicted and sentenced for the alleged offense, his deportation under Section
37(a)(4) is improper, since the prohibited drugs law referred to therein refers not to a foreign drugs law but to the Philippine drugs
law, then Republic Act No. 6425 or the Dangerous Drugs Act of 1972; that although the BOC is clothed with exclusive authority to
decide as to the right of a foreigner to enter the country, still, such executive officers must act within the scope of their authority or
their decision is a nullity.

Petitioners' Motion for Reconsideration[21] was denied by the CA in its presently assailed Resolution[22] dated November 24, 2004.

Hence, the present petition on the following grounds:

I. THE COURT OF APPEALS GRAVELY ERRED IN TAKING COGNIZANCE OF THE SUBJECT CASE WHICH FALLS UNDER
THE EXCLUSIVE PREROGATIVE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

II. ASSUMING ARGUENDO THAT IT COULD TAKE COGNIZANCE OVER THE CASE, THE COURT OF APPEALS GRAVELY
ERRED IN FINDING AN ABUSE OF DISCRETION ON THE PART OF HEREIN PETITIONERS.

III. THE COURT OF APPEALS ERRED IN FINDING THAT THE CHARGES AGAINST THE HEREIN RESPONDENT WERE
DROPPED.

IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIOR CONVICTION IS REQUIRED BEFORE RESPONDENT
COULD BE DEPORTED.[23]
Petitioners contend that the BI has exclusive authority in deportation proceedings and no other tribunal is at liberty to reexamine or to
controvert the sufficiency of the evidence presented therein; that there was no grave abuse of discretion on the part of petitioners
when they sought the deportation of respondent since he was convicted by the Supreme Court of the State of Washington for
attempted Violation of the Uniform Controlled Substances Act and underwent probation in lieu of the imposition of sentence; that the
dismissal of the charge against respondent was only with respect to penalties and liabilities, obtained after fulfilling the conditions for
his probation, and was not an acquittal from the criminal case charged against him; that there is a valid basis to declare respondent's
undesirability and effect his deportation since respondent has admitted guilt of his involvement in a drug-related case.

On the other hand, respondent submits that the proceedings against him reek of persecution; that the CA did not commit any error of
law; that all the arguments raised in the present petition are mere rehashes of arguments raised before and ruled upon by the CA;
and that, even assuming that Section 37(a)(4) of the Philippine Immigration Act of 1940 does not apply, there is no reason, whether
compelling or slight, to deport respondent.

There are two issues for resolution: (1) whether the exclusive authority of the BOC over deportation proceedings bars judicial review,
and (2) whether there is a valid and legal ground for the deportation of respondent.

The Court resolves the first issue in the negative.

It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear cases against an alleged alien, and that the
BOC has jurisdiction over deportation proceedings.[24] Nonetheless, Article VIII, Section 1[25] of the Constitution has vested power of
judicial review in the Supreme Court and the lower courts such as the CA, as established by law. Although the courts are without
power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of
the government and are not empowered to execute absolutely their own judgment from that of Congress or of the President,[26] the
Court may look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when
the act of the legislative or executive department is contrary to the Constitution, the law or jurisprudence, or when executed
whimsically, capriciously or arbitrarily out of malice, ill will or personal bias.[27]

In Domingo v. Scheer,[28] the Court set aside the Summary Deportation Order of the BOC over an alien for having been issued with
grave abuse of discretion in violation of the alien's constitutional and statutory rights to due process, since the BOC ordered the
deportation of the alien without conducting summary deportation proceedings and without affording the alien the right to be heard
on his motion for reconsideration and adduce evidence thereon.

In House of Sara Lee v. Rey,[29] the Court held that while, as a general rule, the factual findings of administrative agencies are not
subject to review, it is equally established that the Court will not uphold erroneous conclusions which are contrary to evidence,
because the agency a quo, for that reason, would be guilty of a grave abuse of discretion.

When acts or omissions of a quasi-judicial agency are involved, a petition for certiorari or prohibition may be filed in the CA as
provided by law or by the Rules of Court, as amended. [30] Clearly, the filing by respondent of a petition for certiorari and prohibition
before the CA to assail the order of deportation on the ground of grave abuse of discretion is permitted.

This brings us to the second issue.

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such privilege is not
absolute or permanent and may be revoked. However, aliens may be expelled or deported from the Philippines only on grounds and
in the manner provided for by the Constitution, the Philippine Immigration Act of 1940, as amended, and administrative issuances
pursuant thereto.[31]

Respondent was charged with violation of Section 37(a)(4) of the Philippine Immigration Act of 1940, as amended, which provides:

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any
other officer designated by him for the purpose and deported upon the warrant of the Commissioner of
Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as
charged against the alien.

xxxx

(4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;

x x x x (Emphasis supplied)
Respondent contends that the use of the definite article the immediately preceding the phrase law on prohibited drugs emphasizes
not just any prohibited drugs law but the law applicable in this jurisdiction, at that time, the Dangerous Drugs Act of 1972.[32]

The Court disagrees.

The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the contrary, they
should be given their plain, ordinary, and common usage meaning.[33] However, a literal interpretation of a statute is to be rejected if
it will operate unjustly, lead to absurd results, or contract the evident meaning of the statute taken as a whole.[34] After all, statutes
should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd
conclusion.[35] Indeed, courts are not to give
words meanings that would lead to absurd or unreasonable consequences.[36]

Were the Court to follow the letter of Section 37(a)(4) and make it applicable only to convictions under the Philippine prohibited drugs
law, the Court will in effect be paving the way to an absurd situation whereby aliens convicted of foreign prohibited drugs laws may
be allowed to enter the country to the detriment of the public health and safety of its citizens. It suggests a double standard of

treatment where only aliens convicted of Philippine prohibited drugs law would be deported, while aliens convicted of foreign
prohibited drugs laws would be allowed entry in the country. The Court must emphatically reject such interpretation of the law.
Certainly, such a situation was not envisioned by the framers of the law, for to do so would be contrary to reason and therefore,
absurd. Over time, courts have recognized with almost pedantic adherence that what is contrary to reason is not allowed in law.

Indubitably, Section 37(a)(4) should be given a reasonable interpretation, not one which defeats the very purpose for which the law
was passed.This Court has, in many cases involving the construction of statutes, always cautioned against narrowly interpreting a
statute as to defeat the purpose of the legislator and stressed that it is of the essence of judicial duty to construe statutes so as to
avoid such a deplorable result of injustice or absurdity, and that therefore a literal interpretation is to be rejected if it would be unjust
or lead to absurd results.[37]

Moreover, since Section 37(a)(4) makes no distinction between a foreign prohibited drugs law and the Philippine prohibited drugs
law, neither should this Court. Ubi lex non distinguit nec nos distinguere debemos.[38] Thus, Section 37(a)(4) should apply to those
convicted of all prohibited drugs laws, whether local or foreign.

There is no dispute that respondent was convicted of Violation of the Uniform Controlled Substances Act in the State of Washington,
USA for attempted possession of cocaine, as shown by the Order Deferring Imposition of Sentence (Probation).[39] While he may have
pleaded guilty to a lesser offense, and was not imprisoned but applied for and underwent a one-year probation, still, there is no
escaping the fact that he was convicted under a prohibited drugs law, even though it may simply be called a misdemeanor drug
offense.[40] The BOC did not commit grave abuse of discretion in ordering the deportation of respondent.

The Court quotes with approval the following acute pronouncements of the BOC:

x x x We note that the respondent admitted in his Memorandum dated 8 October 2001 that he pleaded
guilty to the amended information where he allegedly attempted to have in his possession a certain
controlled substance, and a narcotic drug. Further, he filed a Petition for Leave to Withdraw Plea of Guilty and
Enter Plea of Not Guilty to obtain a favorable release from all penalties and disabilities resulting from the filing of the
said charge.

Evidently, the U.S. Court issued the Order of Dismissal in exchange for the respondent's plea of guilty to the lesser
offense. Though legally allowed in the U.S. Law, We perceive that this strategy afforded the respondent with a
convenient vehicle to avoid conviction and sentencing. Moreover, the plea of guilty is by itself crystal clear
acknowledgment of his involvement in a drug-related offense. Hence, respondent's discharge from
conviction and sentencing cannot hide the fact that he has a prior history of drug-related charge.

This country cannot countenance another alien with a history of a drug-related offense. The crime
may have been committed two decades ago but it cannot erase the fact that the incident actually
happened. This is the very core of his inadmissibility into the Philippines. Apparently, respondent would
like Us to believe that his involvement in this drug case is a petty offense or a mere misdemeanor. However, the
Philippine Government views all drug-related cases with grave concern; hence, the enactment of Republic Act No.
6425, otherwise known as The Dangerous Drugs Act of 1972 and the creation of various drug-enforcement
agencies. While We empathize with the innocent portrayal of the respondent as a man of irreproachable conduct,
not to mention the numerous written testimonies of good character submitted in his behalf, this incomplete and
sanitized representation cannot, however, outweigh our commitment and sworn duty to safeguard public health
and public safety. Moreover, while the U.S. Government may not have any law enforcement interest on
respondent, Philippine immigration authorities certainly do in the able and competent exercise of its police
powers. Thus, this case of the respondent is no different from a convicted felon abroad, who argues

that he cannot be removed from the Philippines on the ground that the crime was committed
abroad. Otherwise, it would open the floodgates to other similarly situated aliens demanding their
admission into the country. Indeed, respondent may not be a menace to the U.S. as a result of his being
discharged from criminal liability, but that does not ipso facto mean that the immigration authorities should
unquestionably admit him into the country.

x x x x[41] (Emphasis supplied)


It must be remembered that aliens seeking entry in the Philippines do not acquire the right to be admitted into the country by the
simple passage of time. When an alien, such as respondent, has already physically gained entry in the country, but such entry is later
found unlawful or devoid of legal basis, the alien can be excluded anytime after it is found that he was not lawfully admissible at the
time of his entry.[42] Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as it may
deem proper for its self-preservation or public interest.[43] The power to deport aliens is an act of State, an act done by or under the
authority of the sovereign power.[44] It is a police measure against undesirable aliens whose continued presence in the country is
found to be injurious to the public good and the domestic tranquility of the people.[45]
WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 76578
areREVERSED and SET ASIDE. The Judgment dated February 11, 2002 of the Board of Commissioners of the Bureau of
Immigration ordering the deportation of respondent Christopher Koruga under Section 37(a)(4) of the Philippine Immigration Act of
1940, as amended, isREINSTATED.

SO ORDERED
EN BANC
SENATOR BENIGNO SIMEON C. AQUINO
III andMAYOR JESSE ROBREDO,
Petitioners,

-versus-

COMMISSION ON ELECTIONS represented by


its Chairman JOSE A.R. MELO and its
Commissioners, RENE
V.
SARMIENTO,
NICODEMO T. FERRER, LUCENITO N.
TAGLE, ARMANDO VELASCO, ELIAS R.
YUSOPH AND GREGORIO LARRAZABAL,
Respondents.

G.R. No. 189793


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

April 7, 2010
x----------------------------------------------------------------------------------------------- x
DECISION
PEREZ, J.:

This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court. In this original action,
petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as
unconstitutional of Republic Act No. 9716, entitled An Act Reapportioning the Composition of the First (1 st) and Second (2nd) Legislative Districts in
the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment. Petitioners consequently pray that the
respondent Commission on Elections be restrained from making any issuances and from taking any steps relative to the implementation of Republic
Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria Macapagal Arroyo on 12 October 2009. It
took effect on 31 October 2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper of general circulation. [1] In
substance, the said law created an additional legislative district for the Province of Camarines Sur by reconfiguring the existing first and second
legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821, [2] distributed among four (4)
legislative districts in this wise:

District

1st District

2nd District

3rd District

4th District

Municipalities/Cities
Del Gallego
Ragay
Lupi
Sipocot
Cabusao

Libmanan
Minalabac
Pamplona
Pasacao
San Fernando

Gainza
Milaor
Naga
Pili
Ocampo

Canaman
Camaligan
Magarao
Bombon
Calabanga

Caramoan
Garchitorena
Goa
Lagonoy
Presentacion

Sangay
San Jose
Tigaon
Tinamba
Siruma

Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

Population

417,304

474,899

372,548

429,070

Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were reconfigured in order to create an additional
legislative district for the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were
combined with the second district municipalities of Milaor and Gainza to form a new second legislative district. The following table[3] illustrates the
reapportionment made by Republic Act No. 9716:
District

1st District

Municipalities/Cities
Del Gallego
Ragay
Lupi
Sipocot
Cabusao

Population

176,383

2nd District

3rd District (formerly


2nd District)

4th District (formerly


3rd District)

5th District (formerly


4th District)

Libmanan
Minalabac
Pamplona
Pasacao

San Fernando
Gainza
Milaor

Naga
Pili
Ocampo
Canaman

Camaligan
Magarao
Bombon
Calabanga

Caramoan
Garchitorena
Goa
Lagonoy
Presentacion

Sangay
San Jose
Tigaon
Tinamba
Siruma

Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

276,777

439,043

372,548

429,070

Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill that became the law show
that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process
progressed step by step, marked by public hearings on the sentiments and position of the local officials of Camarines Sur on the creation of a new
congressional district, as well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that a
population of at least 250,000 is required by the Constitution for such new district. [4]
Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of
Naga City, which was a part of the former second district from which the municipalities of Gainza and Milaor were taken for inclusion in the new
second district. No other local executive joined the two; neither did the representatives of the former third and fourth districts of the province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a
minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district. [5]The petitioners claim that the reconfiguration
by Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a
population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard. [6] The provision
reads:
Article VI
Section 5. (1) x x x x
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each
city with a population of at least two hundred fifty thousand, or each province, shall have at least one
representative.
(4) x x x x (Emphasis supplied).
The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population requirement for the creation of a
legislative district.[7] The petitioners theorize that, save in the case of a newly created province, each legislative district created by Congress must be
supported by a minimum population of at least 250,000 in order to be valid. [8] Under this view, existing legislative districts may be reapportioned and
severed to form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand, if the
reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000 inhabitants, the reapportionment must
be stricken down as invalid for non-compliance with the minimum population requirement.

In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987 Constitution to adopt a population minimum
of 250,000 in the creation of additional legislative seats. [9] The petitioners argue that when the Constitutional Commission fixed the original number
of district seats in the House of Representatives to two hundred (200), they took into account the projected national population of fifty five million
(55,000,000) for the year 1986. [10] According to the petitioners, 55 million people represented by 200 district representatives translates
to roughly 250,000 people for every one (1) representative. [11]Thus, the 250,000 population requirement found in Section 5(3), Article VI of the 1987
Constitution is actually based on the population constant used by the Constitutional Commission in distributing the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a province, Congress is bound
to observe a 250,000 population threshold, in the same manner that the Constitutional Commission did in the original apportionment.
Verbatim, the submission is that:
1.

Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative district as explicitly provided in Article VI, Section 5, Paragraphs
(1) and (3) of the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation as provided in Article VI, Section 5 paragraphs (1), (3)
and (4) of the Constitution.[12]
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the
Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional
and sectoral parties or organizations.
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present petition based on procedural and
substantive grounds.
On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects: first, petitioners committed an error in
choosing to assail the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court;
and second, the petitioners have no locus standi to question the constitutionality of Republic Act No. 9716.
On substantive matters, the respondents call attention to an apparent distinction between cities and provinces drawn by Section 5(3),
Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000 population condition, but argue that a plain and simple
reading of the questioned provision will show that the same has no application with respect to the creation of legislative districts in provinces.
[13]
Rather, the 250,000 minimum population is only a requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts in provinces. Therefore,
Republic Act No. 9716, which only creates an additional legislative district within the province of Camarines Sur, should be sustained as a perfectly
valid reapportionment law.
We first pass upon the threshold issues.
The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the petitioners have committed a
fatal procedural lapse. The respondents cite the following reasons:
1. The instant petition is bereft of any allegation that the respondents had acted without or in excess of jurisdiction, or with grave abuse of
discretion.
2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer or person, whether exercising judicial,
quasi-judicial, or ministerial functions. Respondents maintain that in implementing Republic Act No. 9716, they were not acting as
a judicial or quasi-judicial body, nor were they engaging in the performance of a ministerial act.
3. The petitioners could have availed themselves of another plain, speedy and adequate remedy in the ordinary course of law. Considering
that the main thrust of the instant petition is the declaration of unconstitutionality of Republic Act No. 9716, the same could have
been ventilated through a petition for declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction.

The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of sustaining any substantial
injury as a result of the implementation of Republic Act No. 9716. The respondents, therefore, conclude that the petitioners lack the required legal
standing to question the constitutionality of Republic Act No. 9716.
This Court has paved the way away from procedural debates when confronted with issues that, by reason of constitutional importance,
need a direct focus of the arguments on their content and substance.
The Supreme Court has, on more than one occasion, tempered the application of procedural rules, [14] as well as relaxed the requirement
of locus standi whenever confronted with an important issue of overreaching significance to society.[15]
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR) [16] and Jaworski v. PAGCOR,[17] this Court sanctioned
momentary deviation from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of paramount public
importance. The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on the
social and moral well being of this nation, specially the youth; hence, their proper and just determination is an imperative
need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than promote substantial justice, must always be eschewed. (Emphasis
supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,[18] Tatad v. Executive Secretary,
Chavez v. Public Estates Authority [20] and Bagong Alyansang Makabayan v. Zamora, [21] just to name a few, that absence of direct injury on the
part of the party seeking judicial review may be excused when the latter is able to craft an issue of transcendental importance. In Lim v. Executive
Secretary,[22] this Court held that in cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing
requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v. Gonzales.[23]
[19]

Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path must be taken. We go
directly to the determination of whether or not a population of 250,000 is an indispensable constitutional requirement for the creation of a new
legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it the presumption of constitutionality. [24] Before a law may be declared
unconstitutional by this Court, there must be a clear showing that a specific provision of the fundamental law has been violated or
transgressed. When there is neither a violation of a specific provision of the Constitution nor any proof showing that there is such a violation, the
presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.[25]
There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they
perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one representative.
The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a
district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a
population minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase each city with a population of at least two hundred fifty
thousand from the phrase or each province point to no other conclusion than that the 250,000 minimum population is only required for a city, but not
for a province. [26]
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative,
but not so for a province.
The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court
in Mariano, Jr. v. COMELEC.[27]
In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of
Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time
was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the
Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population
of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity of the newly created district, explaining the operation
of the Constitutional phrase each city with a population of at least two hundred fifty thousand, to wit:
Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3),
Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty

thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative.Even granting that the population of Makati as of the 1990 census
stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall
be entitled to at least one congressional representative.[28] (Emphasis supplied)
The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other
words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it
does not have to increase its population by another 250,000 to be entitled to an additionaldistrict.
There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied
to additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population of at least
250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to
an initial seat by the mere fact of its creation and regardless of its population.
Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled
to at least a legislative district. Thus, Section 461 of the Local Government Code states:
Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the
Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the
following requisites:
(i)
a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management
Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable
income requirement.
Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words and meaning of Section 5 of
Article VI.
The whats, whys, and wherefores of the population requirement of at least two hundred fifty thousand may be gleaned from the records of the
Constitutional Commission which, upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended
to the final document. The Ordinance is captioned APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE
CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE
METROPOLITAN MANILA AREA. Such records would show that the 250,000 population benchmark was used for the 1986
nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila. Simply put, the population figure was used to
determine how many districts a province, city, or Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose,
population had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative
district. And, closer to the point herein at issue, in the determination of the precise district within the province to which, through the use of the
population benchmark, so many districts have been apportioned, population as a factor was not the sole, though it was among, several determinants.
From its journal,[29] we can see that the Constitutional Commission originally divided the entire country into two hundred (200) districts, which
corresponded to the original number of district representatives. The 200 seats were distributed by the Constitutional Commission in this
manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a population of at least 250,000; [30] second,
the remaining seats were then redistributed among the provinces, cities and the Metropolitan Area in accordance with the number of their inhabitants
on the basis of a uniform and progressive ratio. [31]Commissioner Davide, who later became a Member and then Chief Justice of the Court, explained
this in his sponsorship remark[32] for the Ordinance to be appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among
provinces and cities with a population of at least 250, 000 and the Metropolitan Area in accordance with the number of their
respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the
1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56
million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each province shall have at
least one representative, we first allotted one seat for each of the 73 provinces, and each one for all cities with a population
of at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro,
Davao and Zamboanga. Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the
provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio.
(Emphasis supplied).
Thus was the number of seats computed for each province and city. Differentiated from this, the determination of the districts within the province
had to consider all protests and complaints formally received which, the records show, dealt with determinants other than population as already
mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:
INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was more affinity with the
southern town of Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He stated that the First District has a greater area
than the Second District. He then queried whether population was the only factor considered by the Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into account the standards set in Section 5 of the Article on the
Legislative Department, namely: 1) the legislative seats should be apportioned among the provinces and cities and the
Metropolitan Manila area in accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the
legislative district must be compact, adjacent and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the northern towns. He then
inquired what is the distance between Puerto Princesa from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the apportionment, its inclusion with
the northern towns would result in a combined population of 265,000 as against only 186,000 for the south. He added that Cuyo
and Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its
transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto
Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the south, most of whose
inhabitants are not interested in politics. He then suggested that Puerto Princesa be included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the period of amendments. He requested that the
COMELEC staff study said proposal.[33]
PROPOSED AMENDMENT OF MR. NOLLEDO
On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that District I has a total
population of 265,358 including the City of Puerto Princesa, while the Second District has a total population of 186,733. He
proposed, however, that Puerto Princesa be included in the Second District in order to satisfy the contiguity requirement in the
Constitution considering that said City is nearer the southern towns comprising the Second District.
In reply to Mr. Monsods query, Mr. Nolledo explained that with the proposed transfer of Puerto Princesa City to the Second
District, the First District would only have a total population of 190,000 while the Second District would have 262,213, and there
would be no substantial changes.
Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa City before the Municipality of Aborlan.
There being no objection on the part of the Members the same was approved by the Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being no objection, the apportionment and districting
for the province of Palawan was approved by the Body.[34]
The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the towns and the city that eventually
composed the districts.
Benguet and Baguio are another reference point. The Journal further narrates:
At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the Committee for the
possible reopening of the approval of Region I with respect to Benguet and Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one district. He
stated that he was toying with the idea that, perhaps as a special consideration for Baguio because it is the summer capital of the
Philippines, Tuba could be divorced from Baguio City so that it could, by itself, have its own constituency and Tuba could be
transferred to the Second District together with Itogon.Mr. Davide, however, pointed out that the population of Baguio City is
only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the year, but the
transient population would increase the population substantially and, therefore, for purposes of business and professional
transactions, it is beyond question that population-wise, Baguio would more than qualify, not to speak of the official business
matters, transactions and offices that are also there.
Mr. Davide adverted to Director de Limas statement that unless Tuba and Baguio City are united, Tuba will be isolated
from the rest of Benguet as the place can only be reached by passing through Baguio City. He stated that the Committee would
submit the matter to the Body.

Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the Body should have a
say on the matter and that the considerations he had given are not on the demographic aspects but on the fact that Baguio City is
the summer capital, the venue and situs of many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the earlier approval of
the apportionment and districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was put to a vote. With
14 Members voting in favor and none against, the amendment was approved by the Body.
Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will have two
seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok,
Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and districting of Region I. [35]
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution of its three cities, with each
district having a city: one district supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice growing area, because such
consideration fosters common interests in line with the standard of compactness. [36] In the districting of Maguindanao, among the matters discussed
were political stability and common interest among the people in the area and the possibility of chaos and disunity considering the accepted regional,
political, traditional and sectoral leaders. [37] For Laguna, it was mentioned that municipalities in the highland should not be grouped with the towns in
the lowland. For Cebu, Commissioner Maambong proposed that they should balance the area and population. [38]
Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v. COMELEC[39] that:
x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not
require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure
quality representation through commonality of interests and ease of access by the representative to the constituents, all that the
Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent
territory. (Emphasis supplied).
This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional provincial legislative district, which
does not have at least a 250,000 population is not allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.
Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support. And the formulation of the Ordinance
in the implementation of the provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua
non for the formation of an additional legislative district in a province, whose population growth has increased beyond the 1986 numbers.
Translated in the terms of the present case:
1.
The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is based on the formula and constant
number of 250,000 used by the Constitutional Commission in nationally apportioning legislative districts among provinces and cities
entitled to two (2) districts in addition to the four (4) that it was given in the 1986 apportionment. Significantly, petitioner Aquino concedes
this point.[40] In other words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the Province of
Camarines Sur, such as that provided for in Republic Act No. 9786;
2.
Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against strict conformity with
the population standard, and more importantly based on the final districting in the Ordinance on considerations other than population, the
reapportionment or the recomposition of the first and second legislative districts in the Province of Camarines Sur that resulted in the
creation of a new legislative district is valid even if the population of the new district is 176,383 and not 250,000 as insisted upon by the
petitioners.
3.

The factors mentioned during the deliberations on House Bill No. 4264, were:

(a) the dialects spoken in the grouped municipalities;


(b) the size of the original groupings compared to that of the regrouped municipalities;
(c) the natural division separating the municipality subject of the discussion from the reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the redistricting of Districts One and Two. [41]
Each of such factors and in relation to the others considered together, with the increased population of the erstwhile Districts One and Two,
point to the utter absence of abuse of discretion, much less grave abuse of discretion, [42] that would warrant the invalidation of Republic Act No.
9716.
To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative districts of Camarines Sur, the
number of inhabitants in the resulting additional district should not be considered. Our ruling is that population is not the only factor but is just one
of several other factors in the composition of the additional district. Such settlement is in accord with both the text of the Constitution and the spirit
of the letter, so very clearly given form in the Constitutional debates on the exact issue presented by this petition.

WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled An Act Reapportioning the Composition of the First
(1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment is a VALID LAW.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 198742

August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,


vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents.
SERENO,*
PERLAS-BERNABE, JJ *
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual
citizen ineligible to run for and thus hold any elective public office.
The Case
At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify Resolution2dated September 6, 2011
of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the
Order3 dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated
Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora
Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts

The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984, she
became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia
pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application
was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the Department of
Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27, 2006 certifying that she
has ceased to be an Australian citizen.6
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought elective
office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of votes and was
proclaimed as the winning candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M. Bautista,8 (private respondents) all registered
voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the RTC. The petitions
similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual citizen and that she failed
to execute a "personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an
oath" as imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen. She
claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with Section 5(2),
R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of R.A.
No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal declaration
of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the renunciation of
foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the RTCs decision disposed as
follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of Caba, La
Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order10dated November 30, 2010
for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by the
COMELEC en banc in its Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal were given
due course. The COMELEC en banc concurred with the findings and conclusions of the RTC; it also granted the Motion for Execution
Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.12 (Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioners Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual citizenship
and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the "personal and
sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does not
apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites portions
of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House Bill (H.B.) No.
4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed
certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead of
remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the execution
pending appeal of the RTCs judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling on its
reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an election case;
III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of
determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in Section 5(2) of
R.A. No. 9225 is a mere pro-forma requirement.
The Courts Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article IX-C
of the Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except
motions on interlocutory orders of the division which shall be resolved by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for its
reinstatement instead of remanding the same to the division that initially dismissed it.

We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to decide
the substantive merits of the petitioners appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered arguments
on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for reconsideration attaching
therewith supporting documents13 to her contention that she is no longer an Australian citizen. The petitioner, after obtaining an
unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the substantial merits of her appeal when
she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a
precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in several
ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant to the
rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14
II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of execution
and that such function belongs only to the court of origin.
There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the
suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure.15
Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial court has
lost jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision vis--vis election cases when we held that judgments in
election cases which may be executed pending appeal includes those decided by trial courts and those rendered by the COMELEC
whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioners eligibility to hold public
office.
The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010 elections
cannot operate as an estoppel to the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the
qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing
of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial,
or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto
with the Commission within ten days after the proclamation of the results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day period
prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him completely helpless

as he has another chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253 of the Omnibus Election Code.17
The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election Code
cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine
citizenship18 by taking an oath of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and obligations
concomitant therewith, subject to certain conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its
duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where
they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage
in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those
who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized
citizens. (Emphasis ours)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an Oath of
Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and
Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian citizenship in
Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section 5(2) that the
renunciation of foreign citizenship must be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of any
and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature. She
anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the precursor
of R.A. No. 9225.
At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law is
ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is clear and
free from any doubt, there is no occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A. No.
9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more
things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.20
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its categorical and single meaning: a
Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to
a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the
renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who
is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or retaining their Philippine citizenship
under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who
reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign
country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No.
9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of
any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to
qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship)
requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they
have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the
discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on
18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur
Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign
citizenship;
xxxx
The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to
take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run
for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely,
Philippine citizenship.23 (Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running for the position of vice-mayor for
his failure to make a personal and sworn renunciation of his American citizenship.

We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The language
of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read literally.25 The
foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a resort to the Journal of the House
of Representatives invoked by the petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized
Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship shall
continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run for public
office provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of foreign
citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as Filipino
citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other foreign
citizenship if and when they run for public office. He thereafter proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised
pertaining to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States
considered a naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his foreign
citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship. He pointed out
further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire their
Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be considered
qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign
citizenship and that they comply with the residency and registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth without
having to perform an act to complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said, would help
Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained that
the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the accountability of
public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro forma
requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who have
reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run for the
presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a natural-born citizen
is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to a Filipino citizen who has
acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his Filipino citizenship.

As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens by
election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not considering as
natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they
should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however
stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert back to
the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now wished to
reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her
repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered natural-born.
He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to another sovereignty
should not be allowed to revert back to their status of being natural-born citizens once they decide to regain their Filipino citizenship. He
underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will defeat
the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to regain
their Filipino citizenship, will be considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens are not
considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935 Constitution
and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality and only
naturalized citizens are not considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens who
acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.27
The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the preceding
and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within the
context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino citizenship under
the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for government positions
reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.
It was Representative Javiers position that they should be considered as repatriated Filipinos and not as natural-born citizens since
they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who need not
perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their original status as
natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born citizens are those who
need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn renunciation of foreign citizenship
be considered as a mere pro forma requirement.
Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal requirement
only with respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect of the principle that naturalborn citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner
wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing
an unsworn affidavit of renunciation.

It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on public
officers primary accountability of allegiance and loyalty, which provides:
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee
who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by
law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or that
one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is
broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.28
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officers
abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a
mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is
entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.29 To prove a foreign law, the party
invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record,
or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the
office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the evidence,
the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established
through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates
wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2)
likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding
the acquisition of citizenship, although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable
action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a number of
decisions, mere authentication of the Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a
competent proof of that law.30
The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods. As uniformly observed by the
RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by the Australian
government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a quo acted
judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the photocopy
of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia attached to the
petitioners motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v.
Datumanong31 that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom of the
latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and operation of

R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so would be a brazen
encroachment upon the sovereign will and power of the people of this Republic.32
The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While
this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on August 29,
2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship.34
The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not
validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification
is not a matter of popularity.35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute
a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all those who have reacquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite
imposed for the exercise of the right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under
Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply
therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship
she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a
sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto.
SO ORDERED.