MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA

and MARIA ISABEL ONGPIN vs. COMMISSION ON

ELECTIONS
On 6 December 1996, private respondent Atty. Jesus
S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by
Peoples Initiative (hereafter, Delfin Petition) [5] wherein
Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature
gathering all over the country;
2. Causing the necessary publications of said
Order and the attached Petition for Initiative
on the 1987 Constitution, in newspapers of
general and local circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist
Petitioners
and
volunteers,
in
establishing signing stations at the time and
on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding
member of the Movement for Peoples Initiative, [6] a group
of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of
the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution
granted under Section 2, Article XVII of the Constitution;
that the exercise of that power shall be conducted in
proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No.
2300, signature stations shall be established all over the
country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other
volunteers can gather signatures, it is necessary that the
time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process
involved, it is likewise necessary that the said order, as
well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local
circulation, under the control and supervision of the
COMELEC.
The Delfin Petition further alleged that the provisions
sought to be amended are Sections 4 and 7 of Article VI,
[7]
Section 4 of Article VII, [8] and Section 8 of Article X [9] of
the Constitution.Attached to the petition is a copy of a
Petition
for
Initiative
on
the
1987
Constitution[10] embodying the proposed amendments
which consist in the deletion from the aforecited sections
of the provisions concerning term limits, and with the
following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF

ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987

PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will
first be submitted to the people, and after it is signed by
at least twelve per cent of the total number of registered
voters in the country it will be formally filed with the
COMELEC.
Upon the filing of the Delfin Petition, which was
forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order [11] (a)
directing Delfin to cause the publication of the petition,
together with the attached Petition for Initiative on the
1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and
the notice of hearing in three (3) daily newspapers of
general circulation at his own expense not later than 9
December 1996; and (b) setting the case for hearing on 12
December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December
1996, the following appeared: Delfin and Atty. Pete Q.
Quadra; representatives of the Peoples Initiative for
Reforms, Modernization and Action (PIRMA); intervenoroppositor Senator Raul S. Roco, together with his two
other lawyers; and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), DemokrasyaIpagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN).
[12]
Senator Roco, on that same day, filed a Motion to
Dismiss the Delfin Petition on the ground that it is not the
initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed
Delfin and the oppositors to file their memoranda and/or
oppositions/memoranda within five days.[13]
On 18 December 1996, the petitioners herein -Senator Miriam Defensor Santiago, Alexander Padilla, and
Maria Isabel Ongpin -- filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to
amend the Constitution can only be implemented by law
to be passed by Congress. No such law has been passed;
in fact, Senate Bill No. 1290 entitledAn Act Prescribing and
Regulating Constitutional Amendments by Peoples
Initiative, which petitioner Senator Santiago filed on 24
November 1995, is still pending before the Senate
Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems
of initiative, namely, initiative on the Constitution, on
statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution,
unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of
peoples initiative to amend the Constitution was left to
some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered

before the Senate in 1994: There is not a single word in

that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the
law after publication in print media. This indicates that the
Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and
not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January
1991 to govern the conduct of initiative on the
Constitution and initiative and referendum on national and
local laws, is ultra vires insofar asinitiative on
amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations
for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the
Constitution to pass the implementing law.
(5)The peoples initiative is limited to amendments to the
Constitution, not to revision thereof. Extending or lifting of
term limits constitutes a revision and is, therefore, outside
the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for
peoples initiative; neither the COMELEC nor any other
government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil
action for prohibition, the petitioners allege that in the
event the COMELEC grants the Delfin Petition, the peoples
initiative spearheaded by PIRMA would entail expenses to
the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the
millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of
the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of
a taxpayers and legislators suit.[14] Besides, there is no
other plain, speedy, and adequate remedy in the ordinary
course of law.
On 19 December 1996, this Court (a) required the
respondents to comment on the petition within a nonextendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and
continuing until further orders, enjoining public respondent
COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for peoples initiative to
amend the Constitution.
On 2 January 1997, private respondents, through Atty
Quadra, filed their Comment[15] on the petition. They argue
therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO

THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00) IF THE COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED
TO THE COMELEC. THE ESTIMATED COST OF THE DAILY
PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY
ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC
IS DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS
INITIATORY JURISDICTION UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN
THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS
THE ENABLING LAW IMPLEMENTING THE POWER OF
PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE
BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS
UPHELD BY THE HONORABLE COURT IN THE RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R.
NO. 125416 WHERE THE HONORABLE COURT SAID: THE
COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL
USE, IN IMPLEMENTING OF THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO.
1290 CONTAINS A PROVISION DELEGATING TO THE
COMELEC THE POWER TO PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF
OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE
1987 CONSTITUTION IS NOT A REVISION OF THE
CONSTITUTION. IT IS ONLY AN AMENDMENT. AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC
PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE
DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT
SHOULD BE ALTERED. (PP. 412-413, 2ND. ED. 1992, 1097
PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin

filed in his own behalf a Comment[16] which starts off with
an assertion that the instant petition is a knee-jerk
reaction to a draft Petition for Initiative on the 1987
Constitution ... which is not formally filed yet. What he
filed on 6 December 1996 was an Initiatory Pleading or
Initiatory Petition, which was legally necessary to start the
signature campaign to amend the Constitution or to put
the movement to gather signatures under COMELEC power
and function. On the substantive allegations of the
petitioners, Delfin maintains as follows:

(2) A separate subtitle on initiative on the Constitution is

not necessary in R.A. No. 6735 because, being national in
scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions
of the law when he claimed that nothing therein was
provided for initiative on the Constitution.

(1) Contrary to the claim of the petitioners, there is a law,

R.A. No. 6735, which governs the conduct of initiative to
amend the Constitution. The absence therein of a subtitle
for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.

(4) Extension of term limits of elected officials constitutes

a mere amendment to the Constitution, not a revision
thereof.

(2) Section 9(b) of R.A. No. 6735 specifically provides that

the proposition in an initiative to amend the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra
vires is contradicted by (a) Section 2, Article IX-C of the
Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735,
which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the
purposes of the Act.
(4) The proposed initiative does not involve a revision of,
but mere amendment to, the Constitution because it seeks
to alter only a few specific provisions of the Constitution,
or more specifically, only those which lay term limits. It
does not seek to reexamine or overhaul the entire
document.
As to the public expenditures for registration of
voters, Delfin considers petitioners estimate of P180
million as unreliable, for only the COMELEC can give the
exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any
event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of
the sovereign power of the people.
In the Comment[17] for the public respondent
COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to
amend the Constitution. Its Section 2 on Statement of
Policy explicitly affirms, recognizes, and guarantees that
power; and its Section 3, which enumerates the three
systems of initiative, includes initiative on the Constitution
and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5
repeatedly mentionsinitiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a

material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.

(5) COMELEC Resolution No. 2300 was validly issued under

Section 20 of R.A. No. 6735 and under the Omnibus
Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact
upheld by this Court in Subic Bay Metropolitan Authority
vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc
pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latters Manifestation
stating that he is the counsel for private respondents
Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for
Intervention filed on 6 January 1997 by Senator Raul Roco
and allowed him to file his Petition in Intervention not later
than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol
ang Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed
a Motion for Intervention. Attached to the motion was their
Petition in Intervention, which was later replaced by an
Amended Petition in Intervention wherein they contend
that:
(1) The Delfin proposal does not involve a
mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J.,[18] it would
involve a change from a political philosophy that rejects
unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it
can affect other provisions, such as, on synchronization of
elections and on the State policy of guaranteeing equal
access to opportunities for public service and prohibiting
political dynasties.[19] A revision cannot be done
by initiative which, by express provision of Section 2 of
Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and
the limits provided for all other national and local elective
officials are based on the philosophy of governance, to
open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to

break the concentration of political and economic powers

in the hands of a few, and to promote effective proper
empowerment for participation in policy and decisionmaking for the common good; hence, to remove the term
limits is to negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the purpose of
initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that
may be availed of by the people only if they are
dissatisfied with the performance of their elective officials,
but not as a premium for good performance.[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be
called the enabling law that implements the
peoples initiative on amendments to the Constitution. It
fails to state (a) the proper parties who may file the
petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d)
the publication of the same, (e) the ways and means of
gathering the signatures of the voters nationwide and 3%
per legislative district, (f) the proper parties who may
oppose or question the veracity of the signatures, (g) the
role of the COMELEC in the verification of the signatures
and the sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite,
and (g) the appropriation of funds for such peoples
initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or
remedied by COMELEC Resolution No. 2300, since the
COMELEC is without authority to legislate the procedure
for a peoples initiative under Section 2 of Article XVII of
the Constitution. That function exclusively pertains to
Congress. Section 20 of R.A. No. 6735 does not constitute
a legal basis for the Resolution, as the former does not set
a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his
Petition in Intervention.[21] He avers that R.A. No. 6735 is
the enabling law that implements the peoples right to
initiate constitutional amendments. This law is a
consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a
sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to
promulgate COMELEC Resolution No. 2300. Nevertheless,
he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to
order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No.
2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for
initiative which is signed by the required number of
registered voters. He also submits that the proponents of a
constitutional amendment cannot avail of the authority
and resources of the COMELEC to assist them is securing
the required number of signatures, as the COMELECs role
in an initiative on the Constitution is limited to the

determination of the sufficiency of the initiative petition

and the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave
to Intervene.
The following day, the IBP filed a Motion for
Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated
under Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for
the required implementing law on the initiative to amend
the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in
that it does not have the required number of signatures.
(4) The petition seeks, in effect a revision of the
Constitution, which can be proposed only by Congress or a
constitutional convention.[22]
On 21 January 1997, we promulgated a Resolution (a)
granting the Motions for Intervention filed by the DIK and
MABINI and by the IBP, as well as the Motion for Leave to
Intervene filed by LABAN; (b) admitting the Amended
Petition in Intervention of DIK and MABINI, and the
Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible
period of five days their Consolidated Comments on the
aforesaid Petitions in Intervention; and (d) requiring LABAN
to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the
parties argued on the following pivotal issues, which the
Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a
System of Initiative and Referendum and Appropriating
Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if
so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No. 2300
(In re: Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution
is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national
and local officials, as proposed in the draft Petition for

Initiative on the 1987 Constitution, would constitute a

revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has
jurisdiction over, a petition solely intended to obtain an
order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature
stations; and (c) directing or causing the publication
of, inter alia, the unsigned proposed Petition for Initiative
on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take
cognizance of the petition when there is a pending case
before the COMELEC.
After hearing them on the issues, we required the
parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor
Senator Roco to submit copies of the deliberations on
House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in
Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the
COMELEC should have dismissed the Delfin Petition for
failure to state a sufficient cause of action and that the
Commissions failure or refusal to do so constituted grave
abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies
of portions of both the Journal and the Record of the House
of Representatives relating to the deliberations of House
Bill No. 21505, as well as the transcripts of stenographic
notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No.
17.
Private respondents Alberto and Carmen Pedrosa
filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP.
[23]
The parties thereafter filed, in due time, their separate
memoranda.[24]
As we stated in the beginning, we resolved to give
due course to this special civil action.
For a more logical discussion of the formulated
issues, we shall first take up the fifth issue which appears
to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the

parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of
this special civil action when there is a pending case
before the COMELEC. The petitioners provide an
affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of
the petition filed by private respondent Delfin. This being
so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule
65, Section 2, a petition for prohibition is the proper
remedy.
29. The writ of prohibition is an extraordinary judicial writ
issuing out of a court of superior jurisdiction and directed
to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the
body politic of the questioned Comelec order. The
consequent climate of legal confusion and political
instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional
law is threatened by the political ambitions of man, only
the Supreme Court can save a nation in peril and uphold
the paramount majesty of the Constitution.[25]
It must be recalled that intervenor Roco filed with the
COMELEC a motion to dismiss the Delfin Petition on the
ground that the COMELEC has no jurisdiction or authority
to entertain the petition.[26] The COMELEC made no ruling
thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on
12 December 1996, it required them to submit within five
days their memoranda or oppositions/memoranda.
[27]
Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by
ordering Delfin to cause the publication of the petition,
together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting
the case for hearing. The COMELECs failure to act on
Rocos motion to dismiss and its insistence to hold on to
the petition rendered ripe and viable the instant petition
under Section 2 of Rule 65 of the Rules of Court, which
provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of
any tribunal, corporation, board, or person, whether
exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of
discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified
petition in the proper court alleging the facts with
certainty and praying that judgment be rendered
commanding the defendant to desist from further
proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims

that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the
required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely
abused its discretion in refusing to dismiss the Delfin
Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may
likewise be
treated
as
a
special
civil
action
for certiorari under Section I of Rule 65 of the Rules of
Court.

congressional action, in the last analysis it still is

dependent on congressional action.

In any event, as correctly pointed out by intervenor

Roco in his Memorandum, this Court may brush aside
technicalities of procedure in cases of transcendental
importance. As we stated in Kilosbayan, Inc. v. Guingona,
Jr.:[28]

This system of initiative was originally included in

Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and
Transitory
Provisions
of
the
1986
Constitutional
Commission in its Committee Report No. 7 (Proposed
Resolution No. 332).[30] That section reads as follows:

A partys standing before this Court is a procedural

technicality which it may, in the exercise of its discretion,
set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed
aside this technicality because the transcendental
importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.

Bluntly stated, the right of the people to directly propose

amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the
Constitution
until
Congress
provides
for
its
implementation. Stated otherwise, while the Constitution
has recognized or granted that right, the people cannot
exercise it if Congress, for whatever reason, does not
provide for its implementation.

SECTION 1. Any amendment to, or revision of, this

Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths
of all its members; or
(b) by a constitutional convention; or

II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every
five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
This provision is not self-executory. In his book,
Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:
[29]

Without implementing legislation Section 2 cannot

operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses

(c) directly by the people themselves thru initiative as

provided for in Article ____ Section ____ of the Constitution.
[31]

The entire proposed Article on Amendments or Revisions

was approved on second reading on 9 July 1986.
[41]
Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again approved
on Second and Third Readings on 1 August 1986.[42]
However, the Committee on Style recommended that
the approved Section 2 be amended by changing percent
to per centum and thereof to therein and deleting the
phrase by law in the second paragraph so that said
paragraph reads: The Congress[43] shall provide for the
implementation of the exercise of this right.[44] This
amendment was approved and is the text of the present
second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the
system of initiative on the Constitution under Section 2 of
Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the
exercise of this right? Those who answer the question in
the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress
to implement the exercise of the right than through the
passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the

Constitutional Commission to substitute the last paragraph

of Section 2 of Article XVII then reading:
The Congress[45] shall by law provide for the
implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the
exercise of this right.
This substitute amendment was an investiture on
Congress of a power to provide for the rules
implementing the exercise of the right. The rules means
the details on how [the right] is to be carried out. [46]
We agree that R.A. No. 6735 was, as its history
reveals,
intended
to
cover initiative to
propose
amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on
Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to
it, viz., (a) House Bill No. 497, [47] which dealt with the
initiative and referendum mentioned in Sections 1 and 32
of Article VI of the Constitution; and (b) House Bill No. 988,
[48]
which dealt with the subject matter of House Bill No.
497, as well as with initiative and referendum under
Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17[49] solely dealt with
initiative and referendum concerning ordinances or
resolutions of local government units. The Bicameral
Conference Committee consolidated Senate Bill No. 17 and
House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the
Senate[50] and by the House of Representatives. [51] This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power
and duty of Congress to provide for the implementation of
the exercise of the right?

initiative and referendum on national laws and local laws,

ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier,
initiative on the Constitution is confined only to proposals
to AMEND. The people are not accorded the power
to directly propose, enact, approve, or reject, in whole or
in
part,
the
Constitution
through
the
system
of initiative. They can only do so with respect to laws,
ordinances, or resolutions.
The foregoing conclusion is further buttressed by the
fact that this section was lifted from Section 1 of Senate
Bill No. 17, which solely referred to a statement of policy
on local initiative and referendum and appropriately used
the phrases propose and enact, approve or reject and in
whole or in part.[52]
Second. It is true that Section 3 (Definition of Terms)
of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates
the constitutional requirements as to the percentage of
the registered voters who must submit the proposal. But
unlike in the case of the other systems ofinitiative, the Act
does not provide for the contents of a petition for initiative
on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought
to be enacted, approved or rejected, amended or
repealed, as the case may be. It does not include, as
among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in
full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as
the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;

A careful scrutiny of the Act yields a negative answer.

c.4 that it is not one of the exceptions provided therein;
First. Contrary to the assertion of public respondent
COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said
section reads:
SECTION 2. Statement and Policy. -- The power of the
people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions
passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a
delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than
one hundred (100) words which shall be legibly written or
printed at the top of every page of the petition.
(Underscoring supplied).
The use of the clause proposed laws sought to be enacted,
approved or rejected, amended or repealed only
strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National
Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is

provided
for initiative on
the
Constitution. This
conspicuous silence as to the latter simply means that the
main thrust of the Act is initiative and referendum on
national and local laws. If Congress intended R.A. No. 6735
to fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided
for a subtitle therefor, considering that in the order of
things, the primacy of interest, or hierarchy of values, the
right of the people to directly propose amendments to the
Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on
amendments to the Constitution is subsumed under the
subtitle on National Initiative and Referendum because it
is national in scope. Our reading of Subtitle II (National
Initiative and Referendum) and Subtitle III (Local Initiative
and Referendum) leaves no room for doubt that the
classification is not based on thescope of the initiative
involved, but on its nature and character. It is national
initiative, if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass.It is
local initiative if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the
legislative bodies of the governments of the autonomous
regions, provinces, cities, municipalities, and barangays
can
pass. This
classification
of
initiative
into national and local is actually based on Section 3 of the
Act, which we quote for emphasis and clearer
understanding:
SEC. 3. Definition of terms -xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition
proposing amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition
proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a petition
proposing to enact a regional, provincial, city, municipal,
or barangay law, resolution or ordinance. (Underscoring
supplied).
Hence, to complete the classification under subtitles
there should have been a subtitle on initiative on
amendments to the Constitution.[53]
A further examination of the Act even reveals that
the subtitling is not accurate. Provisions not germane to
the subtitle on National Initiative and Referendum are
placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:
(b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the plebiscite
shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by

majority of the votes cast in an election called for the
purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission.
(Underscoring supplied).
(2) that portion of Section 11 (Indirect Initiative) referring
to indirect initiative with the legislative bodies of local
governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples
organization, as defined by law, may file a petition for
indirect initiative with the House of Representatives,
and other legislative bodies....
and (3) Section 12 on Appeal, since it applies to decisions
of the COMELEC on the findings of sufficiency or
insufficiency of the petition for initiative or referendum,
which could be petitions for both national and
local initiative and referendum.
Upon the other hand, Section 18 on Authority of
Courts under subtitle III on Local Initiative and Referendum
is misplaced,[54] since the provision therein applies to both
national and local initiative and referendum. It reads:
SEC. 18. Authority of Courts. -- Nothing in this Act shall
prevent or preclude the proper courts from declaring null
and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the
local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost
diligence and care in providing for the details in the
implementation of initiative and referendum on national
and local legislation thereby giving them special attention,
it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the
following:
(a) The required percentage of registered voters to sign
the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and
the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of
the proposition;
(e) The publication of the approved proposition in the
Official Gazette or in a newspaper of general circulation in
the Philippines; and
(f) The effects of the approval or rejection of the
proposition.[55]

As regards local initiative, the Act provides for the

following:
(a) The preliminary requirement as to the number of
signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative
body concerned;
(c) The effect of the legislative bodys failure to favorably
act thereon, and the invocation of the power of initiative
as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through
its official in the local government unit concerned as to
whether the required number of signatures have been
obtained;
(h) The setting of a date by the COMELEC for the
submission of the proposition to the registered voters for
their approval, which must be within the period specified
therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.[56]
Upon the other hand, as to initiative on amendments
to the Constitution, R.A. No. 6735, in all of its twenty-three
sections, merely (a) mentions, the word Constitution in
Section 2; (b) defines initiative on the Constitution and
includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of plebiscite as the
process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people;
(d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e)
provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the
more important or the paramount system of initiative. R.A.
No. 6735 thus delivered a humiliating blow to the system
of initiative on amendments to the Constitution by merely
paying it a reluctant lip service.[57]
The foregoing brings us to the conclusion that R.A.
No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on

amendments to the Constitution is concerned. Its lacunae

on this substantive matter are fatal and cannot be cured
by empowering the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the
purposes of [the] Act.[58]
The rule is that what has been delegated, cannot be
delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest.[59] The recognized exceptions
to the rule are as follows:
(1) Delegation of tariff powers to the President under
Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President
under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[60]
Empowering the COMELEC, an administrative body
exercising quasi-judicial functions, to promulgate rules and
regulations is a form of delegation of legislative authority
under no. 5 above. However, in every case of permissible
delegation, there must be a showing that the delegation
itself is valid. It is valid only if the law (a) is complete in
itself, setting forth therein the policy to be executed,
carried out, or implemented by the delegate; and (b) fixes
a standard -- the limits of which are sufficiently
determinate and determinable -- to which the delegate
must conform in the performance of his functions. [61] A
sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected.[62]
Insofar as initiative to propose amendments to the
Constitution is concerned, R.A. No. 6735 miserably failed
to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS
IT PRESCRIBES RULES AND REGULATIONS ON
THE CONDUCT OF INITIATIVE ON AMENDMENTS
TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly
promulgate rules and regulations to implement the
exercise of the right of the people to directly propose
amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No.
6735. Reliance on the COMELECs power under Section 2(1)
of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated
by the COMELEC under (a) Section 3 of Article IX-C of the
Constitution, or (b) a law where subordinate legislation is

authorized and which satisfies the completeness and the

sufficient standard tests.

jurisdiction or with grave abuse of discretion and merely

wasted its time, energy, and resources.

IV

The foregoing considered, further discussion on the

issue of whether the proposal to lift the term limits of the
elective national and local officials is an amendment to,
and not a revisionof, the Constitution is rendered
unnecessary, if not academic.

COMELEC ACTED WITHOUT JURISDICTION OR

WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is
a full compliance with the power of Congress to implement
the right to initiate constitutional amendments, or that it
has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No.
2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin
Petition.
Under Section 2 of Article XVII of the Constitution and
Section 5(b) of R.A. No. 6735, a petition for initiative on
the Constitution must be signed by at least 12% of the
total number of registered voters of which every
legislative district is represented by at least 3% of the
registered voters therein. The Delfin Petition does not
contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures
and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the
required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for
initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the
filing of such petition are (1) to prescribe the form of the
petition;[63] (2) to issue through its Election Records and
Statistics Office a certificate on the total number of
registered voters in each legislative district; [64] (3) to
assist, through its election registrars, in the establishment
of signature stations;[65] and (4) to verify, through its
election registrars, the signatures on the basis of the
registry list of voters, voters affidavits, and voters
identification cards used in the immediately preceding
election.[66]
Since the Delfin Petition is not the initiatory petition
under R.A. No. 6735 and COMELEC Resolution No. 2300, it
cannot be entertained or given cognizance of by the
COMELEC. The latter knew that the petition does not fall
under any of the actions or proceedings under the
COMELEC Rules of Procedure or under Resolution No.
2300, for which reason it did not assign to the petition a
docket number. Hence, the said petition was merely
entered as UND, meaning, undocketed. That petition was
nothing more than a mere scrap of paper, which should
not have been dignified by the Order of 6 December 1996,
the hearing on 12 December 1996, and the order directing
Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without

CONCLUSION
This petition must then be granted, and the
COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for
initiative on amendments on the Constitution until a
sufficient law shall have been validly enacted to provide
for the implementation of the system.
We feel, however, that the system of initiative to
propose amendments to the Constitution should no longer
be kept in the cold; it should be given flesh and blood,
energy and strength.Congress should not tarry any longer
in complying with the constitutional mandate to provide
for the implementation of the right of the people under
that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the
system of initiative on amendments to the Constitution,
and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No.
2300 of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections
forthwith DISMISS the DELFIN petition (UND-96-037).

to

The Temporary Restraining Order issued on 18

December 1996 is made permanent as against the
Commission on Elections, but is LIFTED against private
respondents.
Resolution on the matter of contempt is hereby
reserved.
RAUL L. LAMBINO and ERICO B. AUMENTADO,
TOGETHER WITH 6,327,952 REGISTERED VOTERS vs.
THE COMMISSION ON ELECTIONS
On 15 February 2006, petitioners in G.R. No. 174153,
namely Raul L. Lambino and Erico B. Aumentado
("Lambino Group"), with other groups1 and individuals,
commenced gathering signatures for an initiative petition
to change the 1987 Constitution. On 25 August 2006, the

Lambino Group filed a petition with the COMELEC to hold a

plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No.
6735 or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the
support of 6,327,952 individuals constituting at least
twelveper centum (12%) of all registered voters, with each
legislative district represented by at least three per
centum(3%) of its registered voters. The Lambino Group
also claimed that COMELEC election registrars had verified
the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987
Constitution by modifying Sections 1-7 of Article VI
(Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII
entitled "Transitory Provisions."6 These proposed changes
will shift the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government. The
Lambino Group prayed that after due publication of their
petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES
VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM
THE PRESENT BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended
Petition with the COMELEC indicating modifications in the
proposed Article XVIII (Transitory Provisions) of their
initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution
denying due course to the Lambino Group's petition for
lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this
Court's ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the
initiative clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the
issuance of the writs of certiorari and mandamus to set
aside the COMELEC Resolution of 31 August 2006 and to
compel the COMELEC to give due course to their initiative
petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due
course to their petition since Santiago is not a binding
precedent. Alternatively, the Lambino Group claims
that Santiago binds only the parties to that case, and
their petition deserves cognizance as an expression of the
"will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that
the Court require respondent COMELEC Commissioners to

show cause why they should not be cited in contempt for

the COMELEC's verification of signatures and for
"entertaining" the Lambino Group's petition despite the
permanent injunction in Santiago. The Court treated the
Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the
Solicitor General joined causes with the petitioners, urging
the Court to grant the petition despite
the Santiago ruling. The Solicitor General proposed that
the Court treat RA 6735 and its implementing rules "as
temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing
pleadings supporting or opposing the Lambino Group's
petition. The supporting intervenors10 uniformly hold the
view that the COMELEC committed grave abuse of
discretion in relying on Santiago. On the other hand, the
opposing intervenors11 hold the contrary view and
maintain that Santiago is a binding precedent. The
opposing intervenors also challenged (1) the Lambino
Group's standing to file the petition; (2) the validity of the
signature gathering and verification process; (3) the
Lambino Group's compliance with the minimum
requirement for the percentage of voters supporting an
initiative petition under Section 2, Article XVII of the 1987
Constitution;12 (4) the nature of the proposed changes as
revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Group's compliance with the requirement in
Section 10(a) of RA 6735 limiting initiative petitions to only
one subject.
The Court heard the parties and intervenors in oral
arguments on 26 September 2006. After receiving the
parties' memoranda, the Court considered the case
submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition
complies with Section 2, Article XVII of the Constitution on
amendments to the Constitution through a people's
initiative;
2. Whether this Court should revisit its ruling
in Santiago declaring RA 6735 "incomplete, inadequate
or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the
Constitution; and
3. Whether the COMELEC committed grave abuse of
discretion in denying due course to the Lambino Group's
petition.
The Ruling of the Court
There is no merit to the petition.

The Lambino Group miserably failed to comply with the

basic requirements of the Constitution for conducting a
people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants
dismissal based alone on the Lambino Group's glaring
failure to comply with the basic requirements of the
Constitution. For following the Court's ruling in Santiago,
no grave abuse of discretion is attributable to the
Commision on Elections.
1. The Initiative Petition Does Not Comply with
Section 2, Article XVII of the Constitution on Direct
Proposal by the People
Section 2, Article XVII of the Constitution is the governing
constitutional provision that allows a people's initiative to
propose amendments to the Constitution. This section
states:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters of which every legislative
district must be represented by at least three per
centum of the registered voters therein. x x x x
(Emphasis supplied)
The deliberations of the Constitutional Commission vividly
explain the meaning of an amendment "directly
proposed by the people through initiative upon a
petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let
us say some voters want to propose a
constitutional amendment. Is the draft of the
proposed constitutional amendment ready
to be shown to the people when they are
asked to sign?
MR. SUAREZ: That can be reasonably
assumed, Madam President.
MR. RODRIGO: What does the sponsor
mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam
President.
MR. RODRIGO: No, because before they sign
there is already a draft shown to them and
they are asked whether or not they want to
propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino
can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the
"draft of the proposed constitutional amendment"

should be "ready and shown" to the people "before"

they sign such proposal. The framers plainly stated that
"before they sign there is already a draft shown to
them." The framers also "envisioned" that the people
should sign on the proposal itself because the
proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the
people through initiative upon a petition" is that the
entire proposal on its face is a petition by the
people. This means two essential elements must be
present. First, the people must author and thus sign the
entire proposal. No agent or representative can sign on
their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition.
These essential elements are present only if the full text of
the proposed amendments is first shown to the people
who express their assent by signing such complete
proposal in a petition. Thus, an amendment is "directly
proposed by the people through initiative upon a
petition" only if the people sign on a petition that
contains the full text of the proposed amendments.
The full text of the proposed amendments may be either
written on the face of the petition, or attached to it. If so
attached, the petition must state the fact of such
attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen the
full text of the proposed amendments before signing.
Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of
signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the
concept of people's initiative from the United States where
various State constitutions incorporate an initiative clause.
In almost all States15 which allow initiative petitions,the
unbending requirement is that the people must first
see the full text of the proposed amendments
before they sign to signify their assent, and that
the people must sign on an initiative petition that
contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly
explained in several decisions of various courts. Thus,
inCapezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First
Circuit Court of Appeals, declared:
[A] signature requirement would be
meaningless if the person supplying the
signature has not first seen what it is that
he or she is signing. Further, and more
importantly, loose interpretation of the
subscription requirement can pose a significant
potential for fraud. A person permitted to
describe orally the contents of an initiative
petition to a potential signer, without the signer

having actually examined the petition, could

easily mislead the signer by, for example,
omitting, downplaying, or even flatly
misrepresenting, portions of the petition that
might not be to the signer's liking. This danger
seems particularly acute when, in this case,
the person giving the description is the
drafter of the petition, who obviously has a
vested interest in seeing that it gets the
requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of
Oregon explained:
The purposes of "full text" provisions that apply
to amendments by initiative commonly are
described in similar terms. x x x (The purpose
of the full text requirement is to provide
sufficient information so that registered
voters can intelligently evaluate whether to
sign the initiative petition."); x x x
(publication of full text of amended constitutional
provision required because it is "essential for the
elector to have x x x the section which is
proposed to be added to or subtracted from. If he
is to vote intelligently, he must have this
knowledge. Otherwise in many instances he
would be required to vote in the dark.")
(Emphasis supplied)
Moreover, "an initiative signer must be informed at the
time of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and
misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not
expressly state that the petition must set forth the full text
of the proposed amendments. However, the deliberations
of the framers of our Constitution clearly show that the
framers intended to adopt the relevant American
jurisprudence on people's initiative. In particular, the
deliberations of the Constitutional Commission explicitly
reveal that the framers intended that the people must
first see the full text of the proposed amendments
before they sign, and that the people must sign on
a petition containing such full text. Indeed, Section
5(b) of Republic Act No. 6735, the Initiative and
Referendum Act that the Lambino Group invokes as valid,
requires that the people must sign the "petition x x x as
signatories."
The proponents of the initiative secure the signatures from
the people. The proponents secure the signatures in their
private capacity and not as public officials. The proponents
are not disinterested parties who can impartially explain
the advantages and disadvantages of the proposed
amendments to the people. The proponents present
favorably their proposal to the people and do not present
the arguments against their proposal. The proponents, or
their supporters, often pay those who gather the
signatures.

Thus, there is no presumption that the proponents

observed the constitutional requirements in gathering the
signatures. The proponents bear the burden of proving
that they complied with the constitutional requirements in
gathering the signatures - that the petition contained,
or incorporated by attachment, the full text of the
proposed amendments.
The Lambino Group did not attach to their present petition
with this Court a copy of the paper that the people signed
as their initiative petition. The Lambino Group submitted
to this Court a copy of a signature sheet20 after the oral
arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006. The signature sheet
with this Court during the oral arguments was the
signature sheet attached21 to the opposition in
intervention filed on 7 September 2006 by intervenor Atty.
Pete Quirino-Quadra.
There is not a single word, phrase, or sentence of
text of the Lambino Group's proposed changes in
the signature sheet. Neither does the signature
sheet state that the text of the proposed changes is
attached to it. Petitioner Atty. Raul Lambino admitted
this during the oral arguments before this Court on 26
September 2006.
The signature sheet merely asks a question whether the
people approve a shift from the Bicameral-Presidential to
the Unicameral-Parliamentary system of government. The
signature sheet does not show to the people the
draft of the proposed changes before they are
asked to sign the signature sheet. Clearly, the
signature sheet is not the "petition" that the framers of the
Constitution envisioned when they formulated the
initiative clause in Section 2, Article XVII of the
Constitution.
Petitioner Atty. Lambino, however, explained that during
the signature-gathering from February to August 2006, the
Lambino Group circulated, together with the signature
sheets, printed copies of the Lambino Group's draft
petition which they later filed on 25 August 2006 with the
COMELEC. When asked if his group also circulated the
draft of their amended petition filed on 30 August 2006
with the COMELEC, Atty. Lambino initially replied that they
circulated both. However, Atty. Lambino changed his
answer and stated that what his group circulated was the
draft of the 30 August 2006 amended petition, not the
draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that
they prepared the draft of the 30 August 2006 amended
petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner
Erico B. Aumentado's "Verification/Certification" of the 25
August 2006 petition, as well as of the 30 August 2006
amended petition, filed with the COMELEC, states as
follows:
I have caused the preparation of the foregoing
[Amended] Petition in my personal capacity as a

registered voter, for and on behalf of the

Union of Local Authorities of the
Philippines, as shown by ULAP Resolution
No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto.
(Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP
Resolution No. 2006-02 to the present petition.
ULAP Resolution No. 2006-02 does not
authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition,
filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative
(sic) Commission on Charter Change through people's
initiative and referendum as a mode of amending the 1987
Constitution." The proposals of the Consultative
Commission24 arevastly different from the proposed
changes of the Lambino Group in the 25 August 2006
petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative
Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory
Provisions. The proposed revisions have profound impact
on the Judiciary and the National Patrimony provisions of
the existing Constitution, provisions that the Lambino
Group's proposed changes do not touch. The Lambino
Group's proposed changes purport to affect only Articles VI
and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January
2006 or more than six months before the filing of the 25
August 2006 petition or the 30 August 2006 amended
petition with the COMELEC. However, ULAP Resolution No.
2006-02 does not establish that ULAP or the Lambino
Group caused the circulation of the draft petition, together
with the signature sheets, six months before the filing with
the COMELEC. On the contrary, ULAP Resolution No.
2006-02 casts grave doubt on the Lambino Group's
claim that they circulated the draft petition
together with the signature sheets. ULAP
Resolution No. 2006-02 does not refer at all to the
draft petition or to the Lambino Group's proposed
changes.
In their Manifestation explaining their amended petition
before the COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly
realized that the proposed amendments alleged
in the Petition, more specifically, paragraph 3 of
Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and
failed to correctly reflect their proposed
amendments.
The Lambino Group did not allege that they were
amending the petition because the amended petition was

what they had shown to the people during the February to

August 2006 signature-gathering. Instead, the Lambino
Group alleged that the petition of 25 August 2006
"inaccurately stated and failed to correctly reflect their
proposed amendments."
The Lambino Group never alleged in the 25 August 2006
petition or the 30 August 2006 amended petition with the
COMELEC that they circulated printed copies of the draft
petition together with the signature sheets. Likewise, the
Lambino Group did not allege in their present petition
before this Court that they circulated printed copies of the
draft petition together with the signature sheets. The
signature sheets do not also contain any indication that
the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-inInterventions that the Lambino Group first claimed that
they circulated the "petition for initiative filed with the
COMELEC," thus:
[T]here is persuasive authority to the effect
that "(w)here there is not (sic) fraud, a
signer who did not read the measure
attached to a referendum petition cannot
question his signature on the ground that
he did not understand the nature of the
act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224,
S.W. 327, 283 Mo. 546.] Thus, the registered
voters who signed the signature sheets
circulated together with the petition for
initiative filed with the COMELEC below, are
presumed to have understood the proposition
contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the
people "the petition for initiative filed with the
COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City
Chapter and Cebu Province Chapters) and Atty. Quadra
had pointed out that the signature sheets did not contain
the text of the proposed changes. In their Consolidated
Reply, the Lambino Group alleged that they circulated
"the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty.
Lambino finally stated during the oral arguments that
what they circulated was the draft of the amended
petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris
Secundum, stating that "a signer who did not read the
measure attached to a referendum petition cannot
question his signature on the ground that he did not
understand the nature of the act." The Lambino Group
quotes an authority that cites a proposed
changeattached to the petition signed by the
people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to
the petition. The same authority the Lambino Group
quotes requires the people to sign on the petition itself.

Indeed, it is basic in American jurisprudence that the

proposed amendment must be incorporated with, or
attached to, the initiative petition signed by the people. In
the present initiative, the Lambino Group's proposed
changes were not incorporated with, or attached to, the
signature sheets. The Lambino Group's citation of Corpus
Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared,
printed, circulated, from February to August 2006 during
the signature-gathering period, the draft of the petition or
amended petition they filed later with the COMELEC. The
Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together
with the signature sheets, the petition or amended
petition. Nevertheless, even assumingthe Lambino
Group circulated the amended petition during the
signature-gathering period, the Lambino Group
admitted circulating only very limited copies of the
petition.
During the oral arguments, Atty. Lambino expressly
admitted that they printed only 100,000 copies of
the draft petition they filed more than six months
later with the COMELEC. Atty. Lambino added that he
also asked other supporters to print additional copies of
the draft petition but he could not state with certainty how
many additional copies the other supporters printed. Atty.
Lambino could only assure this Court of the printing
of 100,000 copies because he himself caused the
printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11
October 2006, the Lambino Group expressly admits
that "petitioner Lambino initiated the printing and
reproduction of 100,000 copies of the petition for
initiative x x x."25 This admission binds the Lambino
Group and establishes beyond any doubt that the
Lambino Group failed to show the full text of the
proposed changes to the great majority of the
people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000
signatories could have received with certainty one copy
each of the petition, assuming a 100 percent distribution
with no wastage. If Atty. Lambino and company attached
one copy of the petition to each signature sheet, only
100,000 signature sheets could have circulated with the
petition. Each signature sheet contains space for ten
signatures. Assuming ten people signed each of these
100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before
they signed the signature sheets would not exceed
1,000,000.
With only 100,000 printed copies of the petition, it would
be physically impossible for all or a great majority of the
6.3 million signatories to have seen the petition before
they signed the signature sheets. The inescapable
conclusion is that the Lambino Group failed to show
to the 6.3 million signatories the full text of the
proposed changes. If ever, not more than one million

signatories saw the petition before they signed the

signature sheets.
In any event, the Lambino Group's signature sheets do not
contain the full text of the proposed changes, either on the
face of the signature sheets, or as attachment with an
indication in the signature sheet of such
attachment.Petitioner Atty. Lambino admitted this
during the oral arguments, and this admission binds
the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission
is fatal. The failure to so include the text of the proposed
changes in the signature sheets renders the initiative void
for non-compliance with the constitutional requirement
that the amendment must be "directly proposed by the
people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the
initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who
signed the signature sheets did not see the full text of the
proposed changes before signing. They could not have
known the nature and effect of the proposed changes,
among which are:
1. The term limits on members of the
legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to
function indefinitely until its members, who are
almost all the present members of Congress,
decide to call for new parliamentary elections.
Thus, the members of the interim Parliament
will determine the expiration of their own
term of office; 27
3. Within 45 days from the ratification of the
proposed changes, the interim Parliament
shall convene to propose further
amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even
indicated in the Lambino Group's signature sheets. The
people who signed the signature sheets had no idea that
they were proposing these amendments. These three
proposed changes are highly controversial. The people
could not have inferred or divined these proposed changes
merely from a reading or rereading of the contents of the
signature sheets.
During the oral arguments, petitioner Atty. Lambino stated
that he and his group assured the people during the
signature-gathering that the elections for the
regular Parliament would be held during the 2007
local elections if the proposed changes were ratified
before the 2007 local elections. However, the text of the
proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory
Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide

for the election of the members of
Parliament, which shall be synchronized and
held simultaneously with the election of all
local government officials. x x x x (Emphasis
supplied)
Section 5(2) does not state that the elections for the
regular Parliament will be held simultaneously with the
2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held
simultaneously with the local elections without
specifying the year.
Petitioner Atty. Lambino, who claims to be the principal
drafter of the proposed changes, could have easily written
the word "next" before the phrase "election of all local
government officials." This would have insured that the
elections for the regular Parliament would be held in the
next local elections following the ratification of the
proposed changes. However, the absence of the word
"next" allows the interim Parliament to schedule the
elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide
the expiration of their own term of office. This allows
incumbent members of the House of Representatives to
hold office beyond their current three-year term of office,
and possibly even beyond the five-year term of office of
regular members of the Parliament. Certainly, this is
contrary to the representations of Atty. Lambino
and his group to the 6.3 million people who signed
the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the
entire nation.
This lucidly shows the absolute need for the people to
sign an initiative petition that contains the full text of the
proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million
signatories had to rely on the verbal representations of
Atty. Lambino and his group because the signature sheets
did not contain the full text of the proposed changes. The
result is a grand deception on the 6.3 million signatories
who were led to believe that the proposed changes would
require the holding in 2007 of elections for the regular
Parliament simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on
the people who signed the signature sheets. The proposed
changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The
proposed Section 4(4), Article XVIII on Transitory
Provisions, provides:
Section 4(4). Within forty-five days from
ratification of these amendments, the interim
Parliament shall convene to propose
amendments to, or revisions of, this
Constitution consistent with the principles of

local autonomy, decentralization and a strong

bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this
provision is a "surplusage" and the Court and the people
should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the
shift from the Bicameral-Presidential to the UnicameralParliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative
petition incorporates an unrelated subject matter in the
same petition. This puts the people in a dilemma since
they can answer only either yes or no to the entire
proposition, forcing them to sign a petition that effectively
contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is
to nullify the entire proposition and not only the
unrelated subject matter. Thus, in Fine v. Firestone,29 the
Supreme Court of Florida declared:
Combining multiple propositions into one
proposal constitutes "logrolling," which, if
our judicial responsibility is to mean
anything, we cannot permit. The very
broadness of the proposed amendment amounts
to logrolling because the electorate cannot know
what it is voting on - the amendment's
proponents' simplistic explanation reveals only
the tip of the iceberg. x x x x The ballot must give
the electorate fair notice of the proposed
amendment being voted on. x x x x The ballot
language in the instant case fails to do that. The
very broadness of the proposal makes it
impossible to state what it will affect and effect
and violates the requirement that proposed
amendments embrace only one subject.
(Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute
Air Alaska v. McAlpine,30 the Supreme Court of Alaska
warned against "inadvertence, stealth and fraud" in
logrolling:
Whenever a bill becomes law through the initiative
process, all of the problems that the single-subject rule
was enacted to prevent are exacerbated. There is a
greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity
for "inadvertence, stealth and fraud" in the
enactment-by-initiative process. The drafters of an
initiative operate independently of any structured or
supervised process. They often emphasize particular
provisions of their proposition, while remaining silent on
other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to
present their initiative to potential petition-signers

and eventual voters. Many voters will never read the full
text of the initiative before the election. More importantly,
there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties
clearly distinguish the initiative from the legislative
process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary
step for further amendments or revisions to be undertaken
by the interim Parliament as a constituent assembly. The
people who signed the signature sheets could not have
known that their signatures would be used to propose an
amendment mandating the interim Parliament to
propose further amendments or revisions to the
Constitution.
Apparently, the Lambino Group inserted the proposed
Section 4(4) to compel the interim Parliament to amend
or revise again the Constitution within 45 days from
ratification of the proposed changes, or before the May
2007 elections. In the absence of the proposed Section
4(4), the interim Parliament has the discretion whether to
amend or revise again the Constitution. With the proposed
Section 4(4), the initiative proponents want the interim
Parliament mandated to immediately amend or revise
again the Constitution.
However, the signature sheets do not explain the reason
for this rush in amending or revising again so soon the
Constitution. The signature sheets do not also explain
what specific amendments or revisions the initiative
proponents want the interim Parliament to make, and why
there is a need for such further amendments or
revisions. The people are again left in the dark to
fathom the nature and effect of the proposed
changes. Certainly, such an initiative is not "directly
proposed by the people" because the people do not even
know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the
Lambino Group's amended petition of 30 August 2006. The
proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends
in 2010 shall be members of Parliament until
noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will
remain as member of Parliament if the interim Parliament
does not schedule elections for the regular Parliament by
30 June 2010. However, there is no counterpart provision
for the present members of the House of Representatives
even if their term of office will all end on 30 June 2007,
three years earlier than that of half of the present
Senators. Thus, all the present members of the House will
remain members of the interim Parliament after 30 June
2010.
The term of the incumbent President ends on 30 June
2010. Thereafter, the Prime Minister exercises all the
powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June

2010, the Prime Minister will come only from the present
members of the House of Representatives to
theexclusion of the present Senators.
The signature sheets do not explain this discrimination
against the Senators. The 6.3 million people who
signed the signature sheets could not have known
that their signatures would be used to discriminate
against the Senators. They could not have known
that their signatures would be used to limit, after
30 June 2010, the interim Parliament's choice of
Prime Minister only to members of the existing
House of Representatives.
An initiative that gathers signatures from the people
without first showing to the people the full text of the
proposed amendments is most likely a deception, and can
operate as a gigantic fraud on the people. That is why
the Constitution requires that an initiative must be
"directly proposed by the people x x x in a petition"
- meaning that the people must sign on a petition that
contains the full text of the proposed amendments. On so
vital an issue as amending the nation's fundamental law,
the writing of the text of the proposed amendments
cannot be hidden from the people under a general or
special power of attorney to unnamed, faceless, and
unelected individuals.
The Constitution entrusts to the people the power to
directly propose amendments to the Constitution. This
Court trusts the wisdom of the people even if the
members of this Court do not personally know the people
who sign the petition. However, this trust emanates
from a fundamental assumption: the full text of the
proposed amendment is first shown to the people
before they sign the petition, not after they have
signed the petition.
In short, the Lambino Group's initiative is void and
unconstitutional because it dismally fails to comply with
the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly
proposed by the people through initiative upon a
petition."
2. The Initiative Violates Section 2, Article XVII of
the Constitution Disallowing Revision through
Initiatives
A people's initiative to change the Constitution applies
only to an amendment of the Constitution and not to its
revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions
to the Constitution. Article XVII of the Constitution
provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of,
this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of

all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of
amending the Constitution. The first mode is through
Congress upon three-fourths vote of all its Members. The
second mode is through a constitutional convention. The
third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second
modes, applies to "[A]ny amendment to, or revision of,
this Constitution." In contrast, Section 2 of Article XVII,
referring to the third mode, applies only to "[A]mendments
to this Constitution."
There can be no mistake about it. The framers of the
Constitution intended, and wrote, a clear distinction
between "amendment" and "revision" of the Constitution.
The framers intended, and wrote, that only Congress or
a constitutional convention may propose revisions to the
Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the
Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to
propose revisions to the Constitution, the people cannot
propose revisions even as they are empowered to propose
amendments.
This has been the consistent ruling of state supreme
courts in the United States. Thus, in McFadden v.
Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people
by amendment to the Constitution x x x
applies only to the proposing and the
adopting or rejecting of 'laws and
amendments to the Constitution' and does
not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of
the Constitution may be accomplished only
through ratification by the people of a revised
constitution proposed by a convention called for
that purpose as outlined hereinabove.
Consequently if the scope of the proposed
initiative measure (hereinafter termed 'the
measure') now before us is so broad that if such
measure became law a substantial revision of our
present state Constitution would be effected,
then the measure may not properly be submitted
to the electorate until and unless it is first agreed
upon by a constitutional convention, and the writ
sought by petitioner should issue. x x x x
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v.
Appling:33

It is well established that when a constitution

specifies the manner in which it may be amended
or revised, it can be altered by those who favor
amendments, revision, or other change only
through the use of one of the specified means.
The constitution itself recognizes that there is a
difference between an amendment and a
revision; and it is obvious from an examination of
the measure here in question that it is not an
amendment as that term is generally understood
and as it is used in Article IV, Section 1. The
document appears to be based in large part on
the revision of the constitution drafted by the
'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, x x
x and submitted to the 1963 Legislative
Assembly. It failed to receive in the Assembly the
two-third's majority vote of both houses required
by Article XVII, Section 2, and hence failed of
adoption, x x x.
While differing from that document in material
respects, the measure sponsored by the plaintiffs
is, nevertheless, a thorough overhauling of the
present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it
is not such a measure as can be submitted to the
people through the initiative. If a revision, it is
subject to the requirements of Article XVII,
Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner
provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a
people's initiative can only propose amendments to the
Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the
constitutionally prescribed modes of revising the
Constitution. A popular clamor, even one backed by 6.3
million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re
Initiative Petition No. 364:34
It is a fundamental principle that a
constitution can only be revised or
amended in the manner prescribed by the
instrument itself, and that any attempt to
revise a constitution in a manner other than
the one provided in the instrument is
almost invariably treated as extraconstitutional and revolutionary. x x x x
"While it is universally conceded that the people
are sovereign and that they have power to adopt
a constitution and to change their own work at
will, they must, in doing so, act in an orderly
manner and according to the settled principles of
constitutional law. And where the people, in

adopting a constitution, have prescribed the

method by which the people may alter or amend
it, an attempt to change the fundamental law in
violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and
protect the Constitution, cannot shirk from its solemn oath
and duty to insure compliance with the clear command of
the Constitution that a people's initiative may only
amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative
constitute an amendment or revision of the Constitution? If
the Lambino Group's initiative constitutes a revision, then
the present petition should be dismissed for being outside
the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an
amendment and a revision of a constitution. One of the
earliest cases that recognized the distinction described the
fundamental difference in this manner:
[T]he very term "constitution" implies an
instrument of a permanent and abiding nature,
and the provisions contained therein for its
revision indicate the will of the people that
the underlying principles upon which it
rests, as well as the substantial entirety of
the instrument, shall be of a like permanent
and abiding nature. On the other hand, the
significance of the term "amendment" implies
such an addition or change within the lines of the
original instrument as will effect an improvement,
or better carry out the purpose for which it was
framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic
principle in the constitution, like altering the principle
of separation of powers or the system of checks-andbalances. There is also revision if the change alters the
substantial entirety of the constitution, as when the
change affects substantial provisions of the
constitution. On the other hand, amendment broadly
refers to a change that adds, reduces, or deletes
without altering the basic principle involved.
Revision generally affects several provisions of the
constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows
amendments but not revisions to the constitution just like
in our Constitution, courts have developed a two-part
test: the quantitative test and the qualitative test. The
quantitative test asks whether the proposed change is "so
extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions." 36 The court
examines only the number of provisions affected and does
not consider the degree of the change.

The qualitative test inquires into the qualitative effects of

the proposed change in the constitution. The main inquiry
is whether the change will "accomplish such far reaching
changes in the nature of our basic governmental plan as to
amount to a revision."37 Whether there is an alteration in
the structure of government is a proper subject of inquiry.
Thus, "a change in the nature of [the] basic governmental
plan" includes "change in its fundamental framework or
the fundamental powers of its Branches."38 A change in
the nature of the basic governmental plan also includes
changes that "jeopardize the traditional form of
government and the system of check and balances." 39
Under both the quantitative and qualitative tests, the
Lambino Group's initiative is a revision and not merely an
amendment. Quantitatively, the Lambino Group's
proposed changes overhaul two articles - Article VI on the
Legislature and Article VII on the Executive - affecting a
total of 105 provisions in the entire
Constitution.40Qualitatively, the proposed changes alter
substantially the basic plan of government, from
presidential to parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a revision of
the Constitution, as when the three great co-equal
branches of government in the present Constitution are
reduced into two. This alters the separation of powers
in the Constitution. A shift from the present BicameralPresidential system to a Unicameral-Parliamentary system
is a revision of the Constitution. Merging the legislative
and executive branches is a radical change in the
structure of government.
The abolition alone of the Office of the President as the
locus of Executive Power alters the separation of powers
and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress
alters the system of checks-and-balances within the
legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift
from a Bicameral-Presidential to a UnicameralParliamentary system, involving the abolition of the Office
of the President and the abolition of one chamber of
Congress, is beyond doubt a revision, not a mere
amendment. On the face alone of the Lambino Group's
proposed changes, it is readily apparent that the changes
will radically alter the framework of government as
set forth in the Constitution. Father Joaquin Bernas,
S.J., a leading member of the Constitutional Commission,
writes:
An amendment envisages an alteration of one or a few
specific and separable provisions. The guiding original
intention of an amendment is to improve specific parts or
to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or
of provisions of the document which have over-all

implications for the entire document, to determine how

and to what extent they should be altered. Thus, for
instance a switch from the presidential system to a
parliamentary system would be a revision because
of its over-all impact on the entire constitutional
structure. So would a switch from a bicameral
system to a unicameral system be because of its
effect on other important provisions of the
Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the
amendment of the Florida State constitution to shift from
a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and
unauthorized where [the] proposed amendment would x x
x affect several other provisions of [the] Constitution." The
Supreme Court of Florida, striking down the initiative as
outside the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III
of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many
other provisions of the Constitution but
provides for a change in the form of the
legislative branch of government, which has
been in existence in the United States Congress
and in all of the states of the nation, except one,
since the earliest days. It would be difficult to
visualize a more revolutionary change. The
concept of a House and a Senate is basic in the
American form of government. It would not
only radically change the whole pattern of
government in this state and tear apart the
whole fabric of the Constitution, but would
even affect the physical facilities necessary
to carry on government.
xxxx
We conclude with the observation that if such
proposed amendment were adopted by the
people at the General Election and if the
Legislature at its next session should fail to
submit further amendments to revise and clarify
the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate
amendments the people should refuse to adopt
them, simple chaos would prevail in the
government of this State. The same result would
obtain from an amendment, for instance, of
Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could
be other examples too numerous to detail. These
examples point unerringly to the answer.
The purpose of the long and arduous work of the
hundreds of men and women and many sessions
of the Legislature in bringing about the
Constitution of 1968 was to eliminate
inconsistencies and conflicts and to give the State
a workable, accordant, homogenous and up-todate document. All of this could disappear very

quickly if we were to hold that it could be

amended in the manner proposed in the initiative
petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater
force to the present petition. The Lambino Group's
initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the
executive and legislative departments. The initiative
in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18
sections of the Florida Constitution that would be affected
by the shift from a bicameral to a unicameral legislature.
In the Lambino Group's present initiative, no less than
105 provisions of the Constitution would be
affected based on the count of Associate Justice Romeo J.
Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the
structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between
"amendment" and "revision" is only one of procedure,
not of substance. The Lambino Group posits that when a
deliberative body drafts and proposes changes to the
Constitution, substantive changes are called "revisions"
because members of the deliberative body work fulltime on the changes. However, the same substantive
changes, when proposed through an initiative, are called
"amendments" because the changes are made by
ordinary people who do not make an "occupation,
profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition
of their theory in their Memorandum:
99. With this distinction in mind, we note that the
constitutional provisions expressly provide for
both "amendment" and "revision" when it speaks
of legislators and constitutional delegates, while
the same provisions expressly provide only for
"amendment" when it speaks of the people. It
would seem that the apparent distinction is based
on the actual experience of the people, that on
one hand the common people in general are not
expected to work full-time on the matter of
correcting the constitution because that is not
their occupation, profession or vocation; while on
the other hand, the legislators and constitutional
convention delegates are expected to work fulltime on the same matter because that is their
occupation, profession or vocation. Thus, the
difference between the words "revision"
and "amendment" pertain only to the
process or procedure of coming up with the
corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference
between "amendment" and "revision"
cannot reasonably be in the substance or

extent of the correction. x x x x (Underlining in

the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a
constitutional convention had drafted the same proposed
changes that the Lambino Group wrote in the present
initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that
the proposed changes in the present initiative
constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since
the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments
to the Constitution. The Lambino Group trivializes the
serious matter of changing the fundamental law of the
land.
The express intent of the framers and the plain
language of the Constitution contradict the Lambino
Group's theory. Where the intent of the framers and the
language of the Constitution are clear and plainly stated,
courts do not deviate from such categorical intent and
language.45 Any theory espousing a construction contrary
to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating
inconsistencies in the form of government established in
the Constitution. Such a theory, devoid of any
jurisprudential mooring and inviting inconsistencies in the
Constitution, only exposes the flimsiness of the Lambino
Group's position. Any theory advocating that a proposed
change involving a radical structural change in
government does not constitute a revision justly deserves
rejection.
The Lambino Group simply recycles a theory that initiative
proponents in American jurisdictions have attempted to
advance without any success. In Lowe v. Keisling,46 the
Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does
not apply to changes to the constitution proposed
by initiative. His theory is that Article XVII,
section 2 merely provides a procedure by
which the legislature can propose a revision
of the constitution, but it does not affect
proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure
constitutes a wholesale change to the
constitution that cannot be enacted through the
initiative process. They assert that the distinction
between amendment and revision is determined
by reviewing the scope and subject matter of the
proposed enactment, and that revisions are not
limited to "a formal overhauling of the
constitution." They argue that this ballot measure
proposes far reaching changes outside the lines
of the original instrument, including profound
impacts on existing fundamental rights and
radical restructuring of the government's
relationship with a defined group of citizens.
Plaintiffs assert that, because the proposed ballot

measure "will refashion the most basic principles

of Oregon constitutional law," the trial court
correctly held that it violated Article XVII, section
2, and cannot appear on the ballot without the
prior approval of the legislature.
We first address Mabon's argument that Article
XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x
x, the Supreme Court concluded that a revision of
the constitution may not be accomplished by
initiative, because of the provisions of Article XVII,
section 2. After reviewing Article XVII, section1,
relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV,
Section 1, authorizes the use of the initiative as a
means of amending the Oregon Constitution, but
it contains no similar sanction for its use as a
means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating
to revisions, and said: "It is the only section of the
constitution which provides the means for
constitutional revision and it excludes the idea
that an individual, through the initiative, may
place such a measure before the electorate." x x
xx
Accordingly, we reject Mabon's argument
that Article XVII, section 2, does not apply
to constitutional revisions proposed by
initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's
theory which negates the express intent of the framers
and the plain language of the Constitution.
We can visualize amendments and revisions as a
spectrum, at one end green for amendments and at the
other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining
whether there is an amendment or revision. The present
initiative is indisputably located at the far end of the red
spectrum where revision begins. The present initiative
seeks a radical overhaul of the existing separation of
powers among the three co-equal departments of
government, requiring far-reaching amendments in several
sections and articles of the Constitution.
Where the proposed change applies only to a specific
provision of the Constitution without affecting any other
section or article, the change may generally be considered
an amendment and not a revision. For example, a change
reducing the voting age from 18 years to 15 years 47 is an
amendment and not a revision. Similarly, a change
reducing Filipino ownership of mass media companies
from 100 percent to 60 percent is an amendment and not
a revision.48 Also, a change requiring a college degree as
an additional qualification for election to the Presidency is
an amendment and not a revision.49

The changes in these examples do not entail any

modification of sections or articles of the Constitution
other than the specific provision being amended. These
changes do not also affect the structure of government or
the system of checks-and-balances among or within the
three branches. These three examples are located at the
far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is
located.
However, there can be no fixed rule on whether a change
is an amendment or a revision. A change in a single word
of one sentence of the Constitution may be a revision and
not an amendment. For example, the substitution of the
word "republican" with "monarchic" or "theocratic" in
Section 1, Article II50 of the Constitution radically overhauls
the entire structure of government and the fundamental
ideological basis of the Constitution. Thus, each specific
change will have to be examined case-by-case, depending
on how it affects other provisions, as well as how it affects
the structure of government, the carefully crafted system
of checks-and-balances, and the underlying ideological
basis of the existing Constitution.
Since a revision of a constitution affects basic principles,
or several provisions of a constitution, a deliberative
body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not
only several provisions, but also the altered principles with
those that remain unaltered. Thus, constitutions normally
authorize deliberative bodies like constituent assemblies
or constitutional conventions to undertake revisions. On
the other hand, constitutions allow people's initiatives,
which do not have fixed and identifiable deliberative
bodies or recorded proceedings, to undertake only
amendments and not revisions.
In the present initiative, the Lambino Group's proposed
Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of
Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24
which shall be deleted, all other Sections of
Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to
26, unless they are inconsistent with the
Parliamentary system of government, in
which case, they shall be amended to
conform with a unicameral parliamentary
form of government; x x x x (Emphasis
supplied)
The basic rule in statutory construction is that if a later law
is irreconcilably inconsistent with a prior law, the later law
prevails. This rule also applies to construction of
constitutions. However, the Lambino Group's draft of
Section 2 of the Transitory Provisions turns on its head this
rule of construction by stating that in case of such
irreconcilable inconsistency, the earlier provision "shall

be amended to conform with a unicameral parliamentary

form of government." The effect is to freeze the two
irreconcilable provisions until the earlier one "shall be
amended," which requires a future separate constitutional
amendment.
Realizing the absurdity of the need for such an
amendment, petitioner Atty. Lambino readily conceded
during the oral arguments that the requirement of a future
amendment is a "surplusage." In short, Atty. Lambino
wants to reinstate the rule of statutory construction so
that the later provision automatically prevails in case of
irreconcilable inconsistency. However, it is not as simple as
that.
The irreconcilable inconsistency envisioned in the
proposed Section 2 of the Transitory Provisions is not
between a provision in Article VI of the 1987 Constitution
and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the
1987 Constitution and the "Parliamentary system of
government," and the inconsistency shall be resolved in
favor of a "unicameral parliamentary form of
government."
Now, what "unicameral parliamentary form of
government" do the Lambino Group's proposed changes
refer to the Bangladeshi, Singaporean, Israeli, or New
Zealand models, which are among the few countries
withunicameral parliaments? The proposed changes
could not possibly refer to the traditional and well-known
parliamentary forms of government the British, French,
Spanish, German, Italian, Canadian, Australian, or
Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize
that they were adopting the Bangladeshi, Singaporean,
Israeli, or New Zealand parliamentary form of
government?
This drives home the point that the people's initiative is
not meant for revisions of the Constitution but only for
amendments. A shift from the present BicameralPresidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of
the Constitution. Revision of the Constitution through a
people's initiative will only result in gross absurdities in the
Constitution.
In sum, there is no doubt whatsoever that the Lambino
Group's initiative is a revision and not an amendment.
Thus, the present initiative is void and unconstitutional
because it violates Section 2, Article XVII of the
Constitution limiting the scope of a people's initiative
to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not
Necessary
The present petition warrants dismissal for failure to
comply with the basic requirements of Section 2, Article
XVII of the Constitution on the conduct and scope of a
people's initiative to amend the Constitution. There is no

need to revisit this Court's ruling in Santiago declaring RA

6735 "incomplete, inadequate or wanting in essential
terms and conditions" to cover the system of initiative to
amend the Constitution. An affirmation or reversal
of Santiagowill not change the outcome of the present
petition. Thus, this Court must decline to
revisit Santiago which effectively ruled that RA 6735 does
not comply with the requirements of the Constitution to
implement the initiative clause on amendments to the
Constitution.
This Court must avoid revisiting a ruling involving the
constitutionality of a statute if the case before the Court
can be resolved on some other grounds. Such avoidance is
a logical consequence of the well-settled doctrine that
courts will not pass upon the constitutionality of a statute
if the case can be resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to
implement the constitutional provision on initiatives to
amend the Constitution, this will not change the result
here because the present petition violates Section 2,
Article XVII of the Constitution. To be a valid initiative, the
present initiative must first comply with Section 2, Article
XVII of the Constitution even before complying with RA
6735.
Even then, the present initiative violates Section 5(b) of RA
6735 which requires that the "petition for an initiative on
the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as
signatories." Section 5(b) of RA 6735 requires that the
people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25
August 2006 or the amended petition of 30 August 2006
filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra
signed the petition and amended petition as
counsels for "Raul L. Lambino and Erico B.
Aumentado, Petitioners." In the COMELEC, the Lambino
Group, claiming to act "together with" the 6.3 million
signatories, merely attached the signature sheets to the
petition and amended petition. Thus, the petition and
amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the
Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates
Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be
submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the
interim Parliament to propose further amendments or
revisions to the Constitution, is a subject matter totally
unrelated to the shift in the form of government. Since the
present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to
the electorate. Thus, even if RA 6735 is valid, the Lambino
Group's initiative will still fail.

4. The COMELEC Did Not Commit Grave Abuse of

Discretion in Dismissing the Lambino Group's
Initiative
In dismissing the Lambino Group's initiative petition, the
COMELEC en banc merely followed this Court's ruling
inSantiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For
following this Court's ruling, no grave abuse of discretion is
attributable to the COMELEC. On this ground alone, the
present petition warrants outright dismissal. Thus, this
Court should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that
no grave abuse of discretion could be attributed
to the public respondent COMELEC in dismissing
the petition filed by PIRMA therein, it appearing
that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325,
promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land,
deserves the utmost respect and obedience of all the
citizens of this nation. No one can trivialize the
Constitution by cavalierly amending or revising it in
blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution
itself.
To allow such change in the fundamental law is to set
adrift the Constitution in unchartered waters, to be tossed
and turned by every dominant political group of the day. If
this Court allows today a cavalier change in the
Constitution outside the constitutionally prescribed modes,
tomorrow the new dominant political group that comes will
demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution
does not augur well for the rule of law in this country.
An overwhelming majority 16,622,111 voters
comprising 76.3 percent of the total votes cast53
approved our Constitution in a national plebiscite held on
11 February 1987. That approval is the unmistakable
voice of the people, the full expression of the
people's sovereign will. That approval included the
prescribed modes for amending or revising the
Constitution.
No amount of signatures, not even the 6,327,952 million
signatures gathered by the Lambino Group, can change
our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they
ratified the Constitution. The alternative is an extraconstitutional change, which means subverting the
people's sovereign will and discarding the
Constitution. This is one act the Court cannot and should
never do. As the ultimate guardian of the Constitution, this
Court is sworn to perform its solemn duty to defend and

protect the Constitution, which embodies the real

sovereign will of the people.
Incantations of "people's voice," "people's sovereign will,"
or "let the people decide" cannot override the specific
modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution the
people's fundamental covenant that provides enduring
stability to our society becomes easily susceptible to
manipulative changes by political groups gathering
signatures through false promises. Then, the Constitution
ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the
"people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that "ULAP
maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for
constitutional reforms." The Lambino Group thus admits
that their "people's" initiative is an "unqualified support to
the agenda" of the incumbent President to change the
Constitution. This forewarns the Court to be wary of
incantations of "people's voice" or "sovereign will" in the
present initiative.
This Court cannot betray its primordial duty to defend and
protect the Constitution. The Constitution, which embodies
the people's sovereign will, is the bible of this Court. This
Court exists to defend and protect the Constitution.
To allow this constitutionally infirm initiative, propelled by
deceptively gathered signatures, to alter basic principles
in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to
lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No.
174153.
PROF. MERLIN M. MAGALLONA vs. HON. EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY

In 1961, Congress passed Republic Act No. 3046 (RA

3046)2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the
framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I),4 codifying, among
others, the sovereign right of States parties over their
territorial sea, the breadth of which, however, was left
undetermined. Attempts to fill this void during the second
round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained
unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing
of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting
RA 9522, the statute now under scrutiny. The change was
prompted by the need to make RA 3046 compliant with
the terms of the United Nations Convention on the Law of
the Sea (UNCLOS III),5 which the Philippines ratified on 27

February 1984.6 Among others, UNCLOS III prescribes the

water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA
9522 shortened one baseline, optimized the location of
some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island
Group (KIG) and the Scarborough Shoal, as regimes of
islands whose islands generate their own applicable
maritime zones.
Petitioners, professors of law, law students and a
legislator, in their respective capacities as citizens,
taxpayers or x x x legislators,9 as the case may be, assail
the constitutionality of RA 9522 on two principal grounds,
namely: (1) RA 9522 reduces Philippine maritime territory,
and logically, the reach of the Philippine states sovereign
power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of
Paris11 and ancillary treaties,12 and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening
the countrys nuclear-free policy, and damaging marine
resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522s treatment
of the KIG as regime of islands not only results in the loss
of a large maritime area but also prejudices the livelihood
of subsistence fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522
for what it excluded and included its failure to reference
either the Treaty of Paris or Sabah and its use of UNCLOS
IIIs framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised
threshold issues questioning (1) the petitions compliance
with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and
prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys
compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the
countrys security, environment and economic interests or
relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under
international law, of petitioners assertion that what Spain
ceded to the United States under the Treaty of Paris were
the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1.

Preliminarily
1.

Whether petitioners possess locus standi to bring

this suit; and

2.

Whether the writs of certiorari and prohibition are

the proper remedies to assail the constitutionality
of RA 9522.

2.

On the merits, whether RA 9522 is

unconstitutional.

The Ruling of the Court

On the threshold issues, we hold that (1) petitioners
possess locus standi to bring this suit as citizens and (2)
the writs of certiorari and prohibition are proper remedies
to test the constitutionality of RA 9522. On the merits, we
find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus
standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative 15 nor
misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize
petitioners locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national
significance necessitating urgent resolution. Indeed, owing
to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and
specific interest to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition Are Proper
Remedies to Test the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary
grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse
of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners. 18
Respondents submission holds true in ordinary civil
proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of
statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are
sometimes crafted out of statutes which, while having no
bearing on the personal interests of the petitioners, carry
such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the
case and pass upon the issues raised, non-compliance
with the letter of procedural rules notwithstanding. The
statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the
Countrys Maritime Zones and Continental Shelf
Under UNCLOS III, not to Delineate Philippine
Territory
Petitioners submit that RA 9522 dismembers a large
portion of the national territory21 because it discards the
pre-UNCLOS III demarcation of Philippine territory under

the Treaty of Paris and related treaties, successively

encoded in the definition of national territory under the
1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or
statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized
at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the
Treaty of Paris technical description, Philippine sovereignty
over territorial waters extends hundreds of nautical miles
around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss)
of territory. It is a multilateral treaty regulating, among
others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III
delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify
norms regulating the conduct of States in the worlds
oceans and submarine areas, recognizing coastal and
archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are
enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be
any clearer:

Article 48. Measurement of the

breadth of the territorial sea, the
contiguous zone, the exclusive
economic zone and the continental shelf.
The breadth of the territorial sea, the
contiguous zone, the exclusive economic
zone and the continental shelf shall be
measured from archipelagic
baselines drawn in accordance with
article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory
mechanisms for UNCLOS III States parties to delimit with
precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime
space and submarine areas within which States parties
exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and
sanitation laws in the contiguous zone (Article 33), and the
right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf
(Article 77).
Even under petitioners theory that the Philippine
territory embraces the islands and all the waters within
the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to
draw the baselines in conformity with UNCLOS III. The

baselines cannot be drawn from the boundaries or other

portions of the rectangular area delineated in the Treaty of
Paris, but from the outermost islands and drying reefs of
the archipelago.24
UNCLOS III and its ancillary baselines laws play no
role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and
prescription,25 not by executing multilateral treaties on the
regulations of sea-use rights or enacting statutes to
comply with the treatys terms to delimit maritime zones
and continental shelves. Territorial claims to land features
are outside UNCLOS III, and are instead governed by the
rules on general international law.26
RA 9522s Use of the Framework of Regime of
Islands to Determine the Maritime Zones of the KIG
and the Scarborough Shoal, not Inconsistent with
the Philippines Claim of Sovereignty Over these
Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs
regime of islands framework to draw the baselines, and to
measure the breadth of the applicable maritime zones of
the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough
Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of about 15,000 square
nautical miles of territorial waters, prejudicing the
livelihood of subsistence fishermen.28 A comparison of the
configuration of the baselines drawn under RA 3046 and
RA 9522 and the extent of maritime space encompassed
by each law, coupled with a reading of the text of RA 9522
and its congressional deliberations, vis--vis the Philippines
obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046
and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location
of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS IIIs limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522,
the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of
petitioners argument branding RA 9522 as a statutory
renunciation of the Philippines claim over the KIG,
assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square
nautical miles of territorial waters under RA 9522 is
similarly unfounded both in fact and law. On the contrary,
RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical
miles, as shown in the table below:29

Thus, as the map below shows, the reach of the exclusive

economic zone drawn under RA 9522 even extends way
beyond the waters covered by the rectangular
demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of
opposite or adjacent States, there will have to be a

delineation of maritime boundaries in accordance with

UNCLOS III.30
Further, petitioners argument that the KIG now lies outside
Philippine territory because the baselines that RA 9522
draws do not enclose the KIG is negated by RA 9522 itself.
Section 2 of the law commits to text the Philippines
continued claim of sovereignty and jurisdiction over the
KIG and the Scarborough Shoal:

SEC. 2. The baselines in the

following areas over which the
Philippines likewise exercises
sovereignty and jurisdiction shall be
determined as Regime of Islands under
the Republic of the Philippines consistent
with Article 121 of the United Nations
Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as
constituted under Presidential Decree
No. 1596 and
b) Bajo de Masinloc, also known as
Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the
Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that
[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago. Second, Article 47 (2) of UNCLOS III requires
that the length of the baselines shall not exceed 100
nautical miles, save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical
miles.31
Although the Philippines has consistently claimed
sovereignty over the KIG32 and the Scarborough Shoal for
several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline
loped around them from the nearest basepoint will
inevitably depart to an appreciable extent from the
general configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator
Miriam Defensor-Santiago, took pains to emphasize the
foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of
the world call[] the Spratlys and the Scarborough Shoal
are outside our archipelagic baseline because if we put
them inside our baselines we might be accused of
violating the provision of international law which states:
The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the
archipelago. So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang

Scarborough Shoal, hindi natin masasabing malapit sila sa

atin although we are still allowed by international law to
claim them as our own.
This is called contested islands outside our configuration.
We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan
ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating
archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it
should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew
exceeded UNCLOS IIIs limits. The need to shorten this
baseline, and in addition, to optimize the location of
basepoints using current maps, became imperative as
discussed by respondents:
[T]he amendment of the baselines law was necessary to
enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in
the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:

1.

2.

3.

The length of the baseline across Moro

Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x
x x. This exceeds the maximum length
allowed under Article 47(2) of the
[UNCLOS III], which states that The
length of such baselines shall not exceed
100 nautical miles, except that up to 3
per cent of the total number of baselines
enclosing any archipelago may exceed
that length, up to a maximum length of
125 nautical miles.
The selection of basepoints is not
optimal. At least 9 basepoints can be
skipped or deleted from the baselines
system. This will enclose an additional
2,195 nautical miles of water.
Finally, the basepoints were drawn from
maps existing in 1968, and not
established by geodetic survey methods.
Accordingly, some of the points,
particularly along the west coasts of
Luzon down to Palawan were later found
to be located either inland or on water,
not on low-water line and drying reefs as
prescribed by Article 47.35

Hence, far from surrendering the

Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to
classify the KIG and the Scarborough Shoal as
Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of
UNCLOS III manifests the Philippine States
responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under
Article 121 of UNCLOS III, any naturally formed
area of land, surrounded by water, which is
above water at high tide, such as portions of
the KIG, qualifies under the category of
regime of islands, whose islands generate
their own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446
Retained
Petitioners argument for the invalidity of RA 9522 for its
failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial
sea of the Philippine Archipelago as provided in this Act is
without prejudice to the delineation of the
baselines of the territorial sea around the territory
of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion
and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the
Constitutions Delineation of Internal Waters
As their final argument against the validity of RA 9522,
petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea
lanes passage under UNCLOS III, including overflight.
Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal waters under
Article I of the Constitution39 or as archipelagic waters
under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the
baselines, including the air space over it and the
submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air
space over archipelagic waters and of their bed and
subsoil.
1. The sovereignty of an archipelagic State
extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described

as archipelagic waters, regardless of their depth or

distance from the coast.
2. This sovereignty extends to the air space over
the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic
sea lanes passage established in this
Part shall not in other respects
affect the status of the archipelagic
waters, including the sea lanes, or the
exercise by the archipelagic State
of its sovereignty over such waters
and their air space, bed and subsoil,
and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the
operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international
navigation, consistent with the international law principle
of freedom of navigation. Thus, domestically, the political
branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic
waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea
lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law
norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and
conditions for their exercise.42 Significantly, the right of
innocent passage is a customary international law,43 thus
automatically incorporated in the corpus of Philippine
law.44 No modern State can validly invoke its sovereignty
to absolutely forbid innocent passage that is exercised in
accordance with customary international law without
risking retaliatory measures from the international
community.
The fact that for archipelagic States, their
archipelagic waters are subject to both the right of
innocent passage and sea lanes passage45 does not place
them in lesser footing vis--vis continental coastal States
which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage through
international straits. The imposition of these passage
rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their
right to claim all the waters landward of their
baselines, regardless of their depth or distance from the
coast, as archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed
by their baselines as one cohesive entity prevents the

treatment of their islands as separate islands under

UNCLOS III.46 Separate islands generate their own
maritime zones, placing the waters between islands
separated by more than 24 nautical miles beyond the
States territorial sovereignty, subjecting these waters to
the rights of other States under UNCLOS III. 47
Petitioners invocation of non-executory
constitutional provisions in Article II (Declaration of
Principles and State Policies)48 must also fail. Our present
state of jurisprudence considers the provisions in Article II
as mere legislative guides, which, absent enabling
legislation, do not embody judicially enforceable
constitutional rights x x x.49 Article II provisions serve as
guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions
of the Constitution. Although Oposa v. Factoran50treated
the right to a healthful and balanced ecology under
Section 16 of Article II as an exception, the present
petition lacks factual basis to substantiate the claimed
constitutional violation. The other provisions petitioners
cite, relating to the protection of marine wealth (Article XII,
Section 2, paragraph 251) and subsistence fishermen
(Article XIII, Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables
the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a
maritime delineation binds the international community
since the delineation is in strict observance of UNCLOS III.
If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will
refuse to be bound by it.
UNCLOS III favors States with a long coastline
like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in
waters previously part of the high seas. UNCLOS III grants
new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional
freedom of navigation of other States that attached to this
zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive
text of UNCLOS III, Congress was not bound to pass RA
9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option
belongs to Congress, not to this Court. Moreover, the
luxury of choosing this option comes at a very steep price.
Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid
of internationally acceptable baselines from where the
breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it
sends an open invitation to the seafaring powers to freely
enter and exploit the resources in the waters and
submarine areas around our archipelago; and second, it

weakens the countrys case in any international dispute

over Philippine maritime space. These are consequences
Congress wisely avoided.

created the Tubbataha Protected Area Management Board

(TPAMB) which shall be the sole policy-making and permitgranting body of the TRNP.

The enactment of UNCLOS III compliant baselines

law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines maritime
zones and continental shelf. RA 9522 is therefore a most
vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our
national interest.

The
USS
Guardian
is
an
Avenger-class
mine
countermeasures ship of the US Navy. In December 2012,
the US Embassy in the Philippines requested diplomatic
clearance for the said vessel "to enter and exit the
territorial waters of the Philippines and to arrive at the port
of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty." 4 On January 6, 2013, the
ship left Sasebo, Japan for Subic Bay, arriving on January
13, 2013 after a brief stop for fuel in Okinawa,
Japan.1wphi1

WHEREFORE, we DISMISS the petition.

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of

Puerto Princesa D.D. vs. SCOTT H. SWIFT in his
capacity as Commander of the US. 7th Fleet
The name "Tubbataha" came from the Samal (seafaring
people of southern Philippines) language which means
"long reef exposed at low tide." Tubbataha is composed of
two huge coral atolls - the north atoll and the south atoll and the Jessie Beazley Reef, a smaller coral structure
about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan. 1
In 1988, Tubbataha was declared a National Marine Park
by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the
middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization (UNESCO)
as a World Heritage Site. It was recognized as one of the
Philippines' oldest ecosystems, containing excellent
examples of pristine reefs and a high diversity of marine
life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and
endangered marine species. UNESCO cited Tubbataha's
outstanding universal value as an important and
significant natural habitat for in situ conservation of
biological diversity; an example representing significant
on-going ecological and biological processes; and an area
of exceptional natural beauty and aesthetic importance. 2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural
Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic,
biological, sociocultural, educational and scientific values
of the Tubbataha Reefs into perpetuity for the enjoyment
of present and future generations." Under the "no-take"
policy, entry into the waters of TRNP is strictly regulated
and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and
disturbing the resources within the TRNP. The law likewise

On January 15, 2013, the USS Guardian departed Subic

Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu
Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles eastsoutheast of Palawan. No cine was injured in the incident,
and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice
Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretazy Albert F. del Rosario that
the United States will provide appropriate compensation
for damage to the reef caused by the ship."6 By March 30,
2013, the US Navy-led salvage team had finished
removing the last piece of the grounded ship from the
coral reef.
On April 1 7, 2013, the above-named petitioners on their
behalf and in representation of their respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition agairtst
Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as Commanding Officer
of the USS Guardian and Lt. Gen. Terry G. Robling, US
Marine Corps Forces, Pacific and Balikatan 2013 Exercises
Co-Director ("US respondents"); President Benigno S.
Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary
Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose
Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard
Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General
Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and postsalvaging operations of the USS Guardian cause and

continue to cause environmental damage of such

magnitude as to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and TawiTawi, which events violate their constitutional rights to a
balanced and healthful ecology. They also seek a directive
from this Court for the institution of civil, administrative
and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the
grounding incident.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which
they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in
the final prayer of the petition, to wit: WHEREFORE, in
view of the foregoing, Petitioners respectfully pray that the
Honorable Court: 1. Immediately issue upon the filing of
this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in
particular,
a. Order Respondents and any person acting on
their behalf, to cease and desist all operations
over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of
the damaged area as well as an additional buffer
zone;
c. Order Respondents to stop all port calls and
war games under 'Balikatan' because of the
absence of clear guidelines, duties, and liability
schemes for breaches of those duties, and require
Respondents to assume responsibility for prior
and future environmental damage in general, and
environmental damage under the Visiting Forces
Agreement in particular.
d. Temporarily define and describe allowable
activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP
but away from the damaged site and an
additional buffer zone;
2. After summary hearing, issue a Resolution
extending the TEPO until further orders of the
Court;
3. After due proceedings, render a Decision which
shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs,

following the dispositive portion of Nicolas v.
Romulo, "to forthwith negotiate with the United
States representatives for the appropriate
agreement on [environmental guidelines and
environmental accountability] under Philippine
authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies
to commence administrative, civil, and criminal
proceedings
against
erring
officers
and
individuals to the full extent of the law, and to
make such proceedings public;
c. Declare that Philippine authorities may exercise
primary and exclusive criminal jurisdiction over
erring U.S. personnel under the circumstances of
this case;
d. Require Respondents to pay just and
reasonable compensation in the settlement of all
meritorious claims for damages caused to the
Tubbataha Reef on terms and conditions no less
severe than those applicable to other States, and
damages for personal injury or death, if such had
been the case;
e. Direct Respondents to cooperate in providing
for the attendance of witnesses and in the
collection and production of evidence, including
seizure and delivery of objects connected with
the offenses related to the grounding of the
Guardian;
f. Require the authorities of the Philippines and
the United States to notify each other of the
disposition of all cases, wherever heard, related
to the grounding of the Guardian;
g. Restrain Respondents from proceeding with
any purported restoration, repair, salvage or post
salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the
Honorable Court;
h. Require Respondents to engage in stakeholder
and LOU consultations in accordance with the
Local Government Code and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the TRNP
Trust Fund defined under Section 17 of RA 10067
as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to
rehabilitate the areas affected by the grounding
of the Guardian in light of Respondents'
experience in the Port Royale grounding in 2009,
among other similar grounding incidents;

k. Require Respondents to regularly publish on a

quarterly basis and in the name of transparency
and accountability such environmental damage
assessment, valuation, and valuation methods, in
all stages of negotiation;
l. Convene a multisectoral technical working
group to provide scientific and technical support
to the TPAMB;
m. Order the Department of Foreign Affairs,
Department of National Defense, and the
Department
of
Environment
and
Natural
Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to
consider whether their provisions allow for the
exercise of erga omnes rights to a balanced and
healthful ecology and for damages which follow
from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting
Forces Agreement for purposes of protecting the
damaged areas of TRNP;
o. Declare the grant of immunity found in Article
V ("Criminal Jurisdiction") and Article VI of the
Visiting Forces Agreement unconstitutional for
violating equal protection and/or for violating the
preemptory
norm
of
nondiscrimination
incorporated as part of the law of the land under
Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the
Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental
rehabilitation measures and such other reliefs as
are
just
and
equitable
under
the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their
comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against
the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the
grounds relied upon for the issuance of a TEPO or writ of
Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already completed;
(2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA
between the Republic of the Philippines and the United
States of America; and ( 4) the determination of the extent
of responsibility of the US Government as regards the

damage to the Tubbataha Reefs rests exdusively with the

executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal
standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice
on a given question."10 Specifically, it is "a party's personal
and substantial interest in a case where he has sustained
or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the
subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of
paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr., 13 we
recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and polittcal
rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental
importance
with
intergenerational
implications.1wphi1 Such right carries with it the
correlative
duty
to
refrain
from
impairing
the
environment.14
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not only
do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file
a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include,
inter
alia,
the
judicious
disposition,
utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present a:: well as future generations.
Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full
1:njoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound

environment constitutes, at the same time, the

performance of their obligation to ensure the protection of
that right for the generations to come.15 (Emphasis
supplied.)
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn,
is now enshrined in the Rules which allows the filing of a
citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that humans
are stewards of nature."16
Having settled the issue of locus standi, we shall address
the more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit
any pleading or manifestation in this case.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,17 is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed
the principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent,
now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law
of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by
the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state as
a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the
state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state
immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the
authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349] There
are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary disposition
would, in the language of a celebrated case, "unduly vex
the peace of nations." [De Haber v. Queen of Portugal, 17
Q. B. 171]
While the doctrine appears to prohibit only suits against
the state without its consent, it is also applicable to

complaints filed against officials of the state for acts

allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such
officials will require the state itself to perform an
affirmative act to satisfy the same,. such as the
appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as
against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such
a situation, the state may move to dismiss the comp.taint
on the ground that it has been filed without its
consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine
expressed in the Eleventh Amendment which reads:

is

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals, 20 we further
expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary
international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just
to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign
capacity. If the acts giving rise to a suit arc those of a
foreign government done by its foreign agent, although
not necessarily a diplomatic personage, but acting in his
official capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to
be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State,
in whose service he is, under the maxim -par in parem,
non habet imperium -that all states are soverr~ign equals
and cannot assert jurisdiction over one another. The
implication, in broad terms, is that if the judgment against
an official would rec 1uire the state itself to perform an
affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally
impleaded.21(Emphasis supplied.)
In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from
the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto, 23 one of the
consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force,

and was eventually dismissed from his employment when

he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against
the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US
Government which had not given its consent. The RTC
denied the motion but on a petition for certiorari and
prohibition filed before this Court, we reversed the RTC
and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official
functions when they conducted the buy-bust operation
against the complainant and thereafter testified against
him at his trial. It follows that for discharging their duties
as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has
not given its consent to be sued.
This traditional rule of State immunity which exempts a
State from being sued in the courts of another State
without the former's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial
and proprietary acts (Jure gestionis). Under the restrictive
rule of State immunity, State immunity extends only to
acts Jure imperii. 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.24
In Shauf v. Court of Appeals,25 we discussed the limitations
of the State immunity principle, thus:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law
and injurious to the rights of plaintiff. As was clearly set
forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded
or violated by such acts, for the protection of his rights, is
not a suit against the State within the rule of immunity of
the State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State
officer or the director of a State department on the ground
that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of
authority which he does not have, is not a suit against the
State within the constitutional provision that the State
may not be sued without its consent." The rationale for
this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They
state that the doctrine of immunity from suit will not apply
and may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and

agents of the government is removed the moment they

are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his
personal private capacity for whatever damage he may
have caused by his act done with malice and in bad faith,
or
beyond
the
scope
of
his
authority
or
jurisdiction.26 (Emphasis supplied.) In this case, the US
respondents were sued in their official capacity as
commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The
alleged act or omission resulting in the unfortunate
grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military
duties. Considering that the satisfaction of a judgment
against said officials will require remedial actions and
appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of
State immunity therefore bars the exercise of jurisdiction
by this Court over the persons of respondents Swift, Rice
and Robling.
During the deliberations, Senior Associate Justice Antonio
T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit of
Article 31 of the United Nations Convention on the Law of
the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State
regarding passage through the latter's internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has
not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary
international rules on the "traditional uses of the oceans"
as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a
body of treaty rules arid customary norms governing the
uses of the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations
of states with respect to the uses of the oceans." 28 The
UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay, Jamaica.
It was ratified by the Philippines in 1984 but came into
force on November 16, 1994 upon the submission of the
60th ratification.
The UNCLOS is a product of international negotiation that
seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters
is one of the oldest customary principles of international

law.30 The UNCLOS gives to the coastal State sovereign

rights in varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the
high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the
vessel is located.31
Insofar as the internal waters and territorial sea is
concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law.
Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil. 32
In the case of warships,33 as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the
following exceptions:
Article
30
Non-compliance by warships with the laws and regulations
of the coastal State
If any warship does not comply with the laws and
regulations of the coastal State concerning passage
through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal
State may require it to leave the territorial sea
immediately.
Article
31
Responsibility of the flag State for damage caused by a
warship
or other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article
32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A and
in articles 30 and 31, nothing in this Convention affects
the immunities of warships and other government ships
operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply.
But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states
are now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in

UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due
to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable,
multilateral effort to induce U.S. membership, the bulk of
UNCLOS member states cooperated over the succeeding
decade to revise the objection.able provisions. The
revisions satisfied the Clinton administration, which signed
the revised Part XI implementing agreement in 1994. In
the fall of 1994, President Clinton transmitted UNCLOS and
the Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent
support from President Clinton, each of his successors, and
an ideologically diverse array of stakeholders, the Senate
has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations
Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung by
significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently,
111 th Congress SFRC Chairman Senator John Kerry
included "voting out" UNCLOS for full Senate consideration
among his highest priorities. This did not occur, and no
Senate action has been taken on UNCLOS by the 112th
Congress.34
Justice Carpio invited our attention to the policy statement
given by President Reagan on March 10, 1983 that the US
will "recognize the rights of the other , states in the waters
off their coasts, as reflected in the convention [UNCLOS],
so long as the rights and freedom of the United States and
others under international law are recognized by such
coastal states", and President Clinton's reiteration of the
US policy "to act in a manner consistent with its [UNCLOS]
provisions relating to traditional uses of the oceans and to
encourage other countries to do likewise." Since Article 31
relates to the "traditional uses of the oceans," and "if
under its policy, the US 'recognize[s] the rights of the
other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters,
such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS was
centered on its disagreement with UN CLOS' regime of
deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing
out that such "has nothing to do with its [the US']
acceptance
of
customary
international
rules
on
navigation."
It may be mentioned that even the US Navy Judge
Advocate General's Corps publicly endorses the ratification
of the UNCLOS, as shown by the following statement
posted on its official website:
The Convention is in the national interest of the United
States because it establishes stable maritime zones,

including a maximum outer limit for territorial seas;

codifies
innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from
expanding their own maritime zones; and reaffirms
sovereign
immunity
of
warships,
auxiliaries
anJ
government aircraft.

statutes in the US under which agencies of the US have

statutorily waived their immunity to any action. Even
under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence, trespass
and nuisance.

xxxx

The VFA is an agreement which defines the treatment of

United States troops and personnel visiting the Philippines
to promote "common security interests" between the US
and the Philippines in the region. It provides for the
guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation
and
exportation
of
equipment,
materials
and
supplies.36 The invocation of US federal tort laws and even
common law is thus improper considering that it is the VF
A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the
objectives of the agreement.

Economically, accession to the Convention would support

our national interests by enhancing the ability of the US to
assert its sovereign rights over the resources of one of the
largest continental shelves in the world. Further, it is the
Law of the Sea Convention that first established the
concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states
to conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that nonmembership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State
over its internal waters and territorial sea. We thus expect
the US to bear "international responsibility" under Art. 31
in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading
partner, which has been actively supporting the country's
efforts to preserve our vital marine resources, would shirk
from its obligation to compensate the damage caused by
its warship while transiting our internal waters. Much less
can we comprehend a Government exercising leadership
in international affairs, unwilling to comply with the
UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as
provided in Article 197, viz:
Article
Cooperation on a global or regional basis

197

States shall cooperate on a global basis and, as

appropriate, on a regional basis, directly or through
competent international organizations, in formulating and
elaborating
international
rules,
standards
and
recommended practices and procedures consistent with
this Convention, for the protection and preservation of the
marine environment, taking into account characteristic
regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the.latter's territorial sea,
the flag States shall be required to leave the territorial
'::;ea immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from
suit found in the VFA. Likewise, they invoke federal

We are not persuaded.

As it is, the waiver of State immunity under the VF A

pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ
of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be
filed separately:
SEC. 17. Institution of separate actions.-The filing of a
petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or
administrative actions.
In any case, it is our considered view that a ruling on the
application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be found
responsible for the grounding of the USS Guardian, would
be premature and beyond the province of a petition for a
writ of Kalikasan. We also find it unnecessary at this point
to determine whether such waiver of State immunity is
indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines
under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the
same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be
granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC. 15. Judgment.-Within sixty (60) days from the time
the petition is submitted for decision, the court shall
render judgment granting or denying the privilege of the
writ of kalikasan.
The reliefs that may be granted under the writ are the
following:

(a) Directing respondent to permanently cease

and desist from committing acts or neglecting the
performance of a duty in violation of
environmental laws resulting in environmental
destruction or damage;

immediately refer the parties or their counsel, if

authorized by their clients, to the Philippine Mediation
Center (PMC) unit for purposes of mediation. If not
available, the court shall refer the case to the clerk of
court or legal researcher for mediation.

(b) Directing the respondent public official,

govemment agency, private person or entity to
protect, preserve, rehabilitate or restore the
environment;

Mediation must be conducted within a non-extendible

period of thirty (30) days from receipt of notice of referral
to mediation.

(c) Directing the respondent public official,

government agency, private person or entity to
monitor strict compliance with the decision and
orders of the court;
(d) Directing the respondent public official,
government agency, or private person or entity to
make periodic reports on the execution of the
final judgment; and
(e) Such other reliefs which relate to the right of
the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or
restoration of the environment, except the award
of damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in
asserting that this petition has become moot in the sense
that the salvage operation sought to be enjoined or
restrained had already been accomplished when
petitioners sought recourse from this Court. But insofar as
the directives to Philippine respondents to protect and
rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are
concerned, petitioners are entitled to these reliefs
notwithstanding the completion of the removal of the USS
Guardian from the coral reef. However, we are mindful of
the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter
of compensation for the damage caused by the USS
Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing
the extent of the damage and appropriate methods of
rehabilitation.
Exploring avenues for settlement of environmental cases
is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are
available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court,
to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial
conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall

The mediation report must be submitted within ten (10)

days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court
will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the
case to the branch clerk of court for a preliminary
conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge
shall put the parties and their counsels under oath, and
they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties
to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement between
the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a
balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to
make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings
before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009
when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government
was reported to have paid the State of Hawaii $8.5 million
in settlement over coral reef damage caused by the
grounding.38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to
review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine
scientists." The US team intends to "help assess damage
and remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine

government entities, non-governmental organizations, and

scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented
at the cost of the violator is also a major relief that may be
obtained under a judgment rendered in a citizens' suit
under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court
may grant to the plaintiff proper reliefs which shall include
the protection, preservation or rehabilitation of the
environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the
violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be
borne by the violator, or to contribute to a special trust
fund for that purpose subject to the control of the
court.1wphi1
In the light of the foregoing, the Court defers to the
Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations with
another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative-"the political"
--departments of the government, and the propriety of
what may be done in the exercise of this political power is
not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs
prayed for in the petition to order a review of the VFA and
to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec.
Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly
authorized
representative
of
the
United
States
government. The VF A being a valid and binding
agreement, the parties are required as a matter of
international
law
to
abide
by
its
terms
and
provisions.42 The present petition under the Rules is not
the proper remedy to assail the constitutionality of its
provisions. WHEREFORE, the petition for the issuance of
the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
JAMES M. IMBONG vs. HON. PAQUITO N. OCHOA, JR.,
Executive Secretary
Despite calls to withhold support thereto, however,
Republic Act (R.A.) No. 10354, otherwise known as the
Responsible Parenthood and Reproductive Health Act of
2012 (RH Law), was enacted by Congress on December
21, 2012.

Shortly after the President placed his imprimatur on the

said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield
the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision
may produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitionsin-intervention.
A perusal of the foregoing petitions shows that the
petitioners are assailing the constitutionality of RH Law on
the following GROUNDS:
The RH Law violates the right to life of the
unborn. According to the petitioners,
notwithstanding its declared policy against
abortion, the implementation of the RH Law
would authorize the purchase of hormonal
contraceptives, intra-uterine devices and
injectables which are abortives, in violation of
Section 12, Article II of the Constitution which
guarantees protection of both the life of the
mother and the life of the unborn from
conception.35
The RH Law violates the right to health and the
right to protection against hazardous products.
The petitioners posit that the RH Law provides
universal access to contraceptives which are
hazardous to one's health, as it causes cancer
and other health problems.36
The RH Law violates the right to religious
freedom. The petitioners contend that the RH Law
violates the constitutional guarantee respecting
religion as it authorizes the use of public funds for
the procurement of contraceptives. For the
petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens
conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who
seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information on
reproductive health programs and service, although it is
against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules
and Regulations of the RH Law (RH-IRR),39 provides that
skilled health professionals who are public officers such as,
but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with
the duty to implement these Rules, cannot be considered
as conscientious objectors.40

It is also argued that the RH Law providing for the

formulation of mandatory sex education in schools should
not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of
religious freedom is not absolute, they argue that the RH
Law fails to satisfy the "clear and present danger test" and
the "compelling state interest test" to justify the regulation
of the right to free exercise of religion and the right to free
speech.42
The RH Law violates the constitutional provision
on involuntary servitude. According to the
petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they
are compelled to provide forty-eight (48) hours of
pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and
other forms of punishment.43
The petitioners explain that since a majority of patients
are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health
services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be
able to avail of the practitioners services.44
The RH Law violates the right to equal
protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes
them the primary target of the government
program that promotes contraceptive use. The
petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law
seeks to introduce contraceptives that would
effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation
of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or fine
for "any violation," it is vague because it does not
define the type of conduct to be treated as
"violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH
Law violates the right to due process by removing from
them (the people) the right to manage their own affairs
and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the
management prerogative inherent in corporations for
employers to conduct their affairs in accordance with their
own discretion and judgment.
The RH Law violates the right to free speech. To
compel a person to explain a full range of family
planning methods is plainly to curtail his right to
expound only his own preferred way of family
planning. The petitioners note that although
exemption is granted to institutions owned and
operated by religious groups, they are still forced
to refer their patients to another healthcare

facility willing to perform the service or

procedure.48
The RH Law intrudes into the zone of privacy of
one's family protected by the Constitution. It is
contended that the RH Law providing for
mandatory reproductive health education
intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the
person who will undergo reproductive health procedure,
the RH Law forsakes any real dialogue between the
spouses and impedes the right of spouses to mutually
decide on matters pertaining to the overall well-being of
their family. In the same breath, it is also claimed that the
parents of a child who has suffered a miscarriage are
deprived of parental authority to determine whether their
child should use contraceptives.50
The RH Law violates the constitutional principle
of non-delegation of legislative authority. The
petitioners question the delegation by Congress
to the FDA of the power to determine whether a
product is non-abortifacient and to be included in
the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill
rule provision under Section 26( 1 ), Article VI of
the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy
of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM).
It is contended that the RH Law, providing for
reproductive health measures at the local
government level and the ARMM, infringes upon
the powers devolved to LGUs and the ARMM
under the Local Government Code and R.A . No.
9054.54
Various parties also sought and were granted leave to file
their respective comments-in-intervention in defense of
the constitutionality of the RH Law. Aside from the Office
of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman
Edcel C. Lagman,56 former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with
several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive
arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual
case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack

standing to question the RH Law; and 3] the petitions are

essentially petitions for declaratory relief over which the
Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the
enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and
arguments raised, the Court issued the Status Quo Ante
Order (SQAO), enjoining the effects and implementation of
the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference
with the counsels of the parties to determine and/or
identify the pertinent issues raised by the parties and the
sequence by which these issues were to be discussed in
the oral arguments. On July 9 and 23, 2013, and on August
6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their
respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification
on some contentions of the parties.64
ISSUES
After a scrutiny of the various arguments and contentions
of the parties, the Court has synthesized and refined them
to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power
of judicial review over the controversy.
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
DISCUSSION
Before delving into the constitutionality of the RH Law and
its implementing rules, it behooves the Court to resolve
some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its
power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial
hand, the OSG asserts that it should submit to the
legislative and political wisdom of Congress and respect
the compromises made in the crafting of the RH Law, it
being "a product of a majoritarian democratic
process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the
Court to review social legislation like the RH Law by
certiorari is "weak," since the Constitution vests the
discretion to implement the constitutional policies and
positive norms with the political departments, in
particular, with Congress.77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. AntiTerrorism Council,78 the remedies of certiorari and

prohibition utilized by the petitioners are improper to

assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied
challenge," it cannot prosper considering that the assailed
law has yet to be enforced and applied to the petitioners,
and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law
cannot be challenged "on its face" as it is not a speechregulating measure.80
In many cases involving the determination of the
constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the
wisdom of its co-equal branch on the basis of the principle
of separation of powers. To be clear, the separation of
powers is a fundamental principle in our system of
government, which obtains not through express provision
but by actual division in our Constitution. Each department
of the government has exclusive cognizance of matters
within its jurisdiction and is supreme within its own
sphere.81
Thus, the 1987 Constitution provides that: (a) the
legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in
the President of the Philippines;83 and (c) the judicial
power shall be vested in one Supreme Court and in such
lower courts as may be established by law. 84 The
Constitution has truly blocked out with deft strokes and in
bold lines, the allotment of powers among the three
branches of government.85
In its relationship with its co-equals, the Judiciary
recognizes the doctrine of separation of powers which
imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the other
branches of government, in striking down the acts of the
Executive or the Legislature as unconstitutional. Verily, the
policy is a harmonious blend of courtesy and caution. 86
It has also long been observed, however, that in times of
social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated.87 In order to address
this, the Constitution impresses upon the Court to respect
the acts performed by a co-equal branch done within its
sphere of competence and authority, but at the same
time, allows it to cross the line of separation - but only at a
very limited and specific point - to determine whether the
acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon
questions of wisdom, justice or expediency of the RH Law,
it may do so where an attendant unconstitutionality or
grave abuse of discretion results.89 The Court must
demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the
Constitution.
In this connection, it bears adding that while the scope of
judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may
be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes
back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their
collective wisdom but, rather, to make sure that they have

acted in consonance with their respective authorities and

rights as mandated of them by the Constitution. If after
said review, the Court finds no constitutional violations of
any sort, then, it has no more authority of proscribing the
actions under review.90 This is in line with Article VIII,
Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
[Emphases supplied]
As far back as Tanada v. Angara,91 the Court has
unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as
there is no other plain, speedy or adequate remedy in the
ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93Magallona
v. Ermita,94 and countless others. In Tanada, the Court
wrote:
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition
no doubt raises a justiciable controversy. Where an action
of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in
the instant case), it becomes a legal issue which the Court
is bound by constitutional mandate to decide. [Emphasis
supplied]
In the scholarly estimation of former Supreme Court
Justice Florentino Feliciano, "judicial review is essential for
the maintenance and enforcement of the separation of
powers and the balancing of powers among the three
great departments of government through the definition
and maintenance of the boundaries of authority and
control between them. To him, judicial review is the chief,
indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the
Court does not have the unbridled authority to rule on just
any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of
judicial review is limited by four exacting requisites, viz :
(a) there must be an actual case or controversy; (b) the
petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity;
and (d) the issue of constitutionality must be the lis mota
of the case.96
Actual Case or Controversy

Proponents of the RH Law submit that the subj ect

petitions do not present any actual case or controversy
because the RH Law has yet to be implemented. 97 They
claim that the questions raised by the petitions are not yet
concrete and ripe for adjudication since no one has been
charged with violating any of its provisions and that there
is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is
contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion.99 The rule is
that courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real,
tangible and not merely a theoretical question or issue.
There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in
nature, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts.100
Corollary to the requirement of an actual case or
controversy is the requirement of ripeness.101 A question is
ripe for adjudication when the act being challenged has
had a direct adverse effect on the individual challenging it.
For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished
or performed by either branch before a court may come
into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself
as a result of the challenged action. He must show that he
has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of
the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to
pass upon the issues raised as there was yet no concrete
act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question being not
yet effective does not negate ripeness. Concrete acts
under a law are not necessary to render the controversy
ripe. Even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its
implementing rules have already taken effect and that
budgetary measures to carry out the law have already
been passed, it is evident that the subject petitions
present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to
have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the
dispute.104
Moreover, the petitioners have shown that the case is so
because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law
for vague violations thereof, particularly public health

officers who are threatened to be dismissed from the

service with forfeiture of retirement and other benefits.
They must, at least, be heard on the matter NOW.

The petitioners, for their part, invariably invoke the

"transcendental importance" doctrine and their status as
citizens and taxpayers in establishing the requisite locus
standi.

Facial Challenge
The OSG also assails the propriety of the facial challenge
lodged by the subject petitions, contending that the RH
Law cannot be challenged "on its face" as it is not a
speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge,
also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are
but component rights of the right to one's freedom of
expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating
from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the
application of facial challenges to strictly penal
statues,108 it has expanded its scope to cover statutes not
only regulating free speech, but also those involving
religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike
its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only
to settle actual controversies involving rights which are
legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.110 Verily,
the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions
have seriously alleged that the constitutional human rights
to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of
these kindred petitions and to determine if the RH Law can
indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no
actual case or controversy, would diminish this Court as a
reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the
petitioners to file their respective petitions. It contends
that the "as applied challenge" lodged by the petitioners
cannot prosper as the assailed law has yet to be enforced
and applied against them,111 and the government has yet
to distribute reproductive health devices that are
abortive.112

Locus standi or legal standing is defined as a personal and

substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal
stake in the outcome of the controversy as to assure the
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for
illumination of difficult constitutional questions. 114
In relation to locus standi, the "as applied challenge"
embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation
of his own rights. The rule prohibits one from challenging
the constitutionality of the statute grounded on a violation
of the rights of third persons not before the court. This rule
is also known as the prohibition against third-party
standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the
rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the
Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing
requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency
Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several
executive orders although they had only an indirect and
general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law
may not be assailed through an "as-applied challenge,
still, the Court has time and again acted liberally on the
locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured
or with material interest affected by a Government act,
provided a constitutional issue of transcendental
importance is invoked. The rule on locus standi is, after all,
a procedural technicality which the Court has, on more
than one occasion, waived or relaxed, thus allowing nontraditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been directly injured by
the operation of a law or any other government act. As
held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be
properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this
case warrants that we set aside the technical defects and
take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of
this nation, specially the youth; hence, their proper and
just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of

procedure are not inflexible tools designed to hinder or

delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed.
(Emphasis supplied)
In view of the seriousness, novelty and weight as
precedents, not only to the public, but also to the bench
and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the
constitutional provisions on the right to life and health, the
freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that
the issues of contraception and reproductive health have
already caused deep division among a broad spectrum of
society, the Court entertains no doubt that the petitions
raise issues of transcendental importance warranting
immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the
unborn which is primarily at issue, the Court need not wait
for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial
restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake,
would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are
essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that
most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider
them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the
RH Law, claiming that it violates Section 26(1 ), Article VI
of the Constitution,122 prescribing the one subject-one title
rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation
violates the constitutional standards of due process by
concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the
RH Law is not a birth or population control measure,124and
that the concepts of "responsible parenthood" and
"reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive
health law, the Court sees it as principally a population
control measure. The corpus of the RH Law is geared
towards the reduction of the country's population. While it
claims to save lives and keep our women and children
healthy, it also promotes pregnancy-preventing products.
As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized,
with access to information on the full range of modem
family planning products and methods. These family

planning methods, natural or modem, however, are clearly

geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the
RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide
pre-natal and post-natal care as well. A large portion of the
law, however, covers the dissemination of information and
provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are
all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention
that the whole idea of contraception pervades the entire
RH Law. It is, in fact, the central idea of the RH
Law.126 Indeed, remove the provisions that refer to
contraception or are related to it and the RH Law loses its
very foundation.127 As earlier explained, "the other positive
provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and
management of reproductive tract infections including
HIV/AIDS are already provided for in the Magna Carta for
Women."128
Be that as it may, the RH Law does not violate the one
subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G
Escudero, it was written:
It is well-settled that the "one title-one subject" rule does
not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully
index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and
consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal
rather than technical construction of the rule "so as not to
cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of
the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to
the overriding objective to control the population growth.
As expressed in the first paragraph of Section 2 of the RH
Law:
SEC. 2. Declaration of Policy. - The State recognizes and
guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to
health which includes reproductive health, the right to
education and information, and the right to choose and
make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood.
The one subject/one title rule expresses the principle that
the title of a law must not be "so uncertain that the
average person reading it would not be informed of the
purpose of the enactment or put on inquiry as to its
contents, or which is misleading, either in referring to or
indicating one subject where another or different one is
really embraced in the act, or in omitting any expression
or indication of the real subject or scope of the act." 129

Considering the close intimacy between "reproductive

health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed
legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the
right to life and health of the unborn child under Section
12, Article II of the Constitution. The assailed legislation
allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms
prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach
and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take
effect after fertilization and prior to implantation, contrary
to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows
only "non-abortifacient" hormonal contraceptives,
intrauterine devices, injectables and other safe, legal, nonabortifacient and effective family planning products and
supplies, medical research shows that contraceptives use
results in abortion as they operate to kill the fertilized
ovum which already has life.131
As it opposes the initiation of life, which is a fundamental
human good, the petitioners assert that the State sanction
of contraceptive use contravenes natural law and is an
affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law
requires the Food and Drug Administration (FDA) to certify
that the product or supply is not to be used as an
abortifacient, the assailed legislation effectively confirms
that abortifacients are not prohibited. Also considering
that the FDA is not the agency that will actually supervise
or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make
a certification that it shall not be used for abortifacient
purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that
the intent of the Framers of the Constitution was simply
the prohibition of abortion. They contend that the RH Law
does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive
health care services, methods, devices products and
supplies shall be made accessible to the public. 134
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients
by enacting the RH Law. As the RH Law was enacted with
due consideration to various studies and consultations
with the World Health Organization (WHO) and other
experts in the medical field, it is asserted that the Court

afford deference and respect to such a determination and

pass judgment only when a particular drug or device is
later on determined as an abortive.135
For his part, respondent Lagman argues that the
constitutional protection of one's right to life is not
violated considering that various studies of the WHO show
that life begins from the implantation of the fertilized
ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the
fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human
being enjoys the right to life.137
Even if not formally established, the right to life, being
grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or
belief. It precedes and transcends any authority or the
laws of men.
In this jurisdiction, the right to life is given more than
ample protection. Section 1, Article III of the Constitution
provides:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family
planning methods in the Philippines is not of recent
vintage. From the enactment of R.A. No. 4729, entitled "An
Act To Regulate The Sale, Dispensation, and/or Distribution
of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices
which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of
numerous international agreements, the country has long
recognized the need to promote population control
through the use of contraceptives in order to achieve longterm economic development. Through the years, however,
the use of contraceptives and other family planning
methods evolved from being a component of demographic
management, to one centered on the promotion of public
health, particularly, reproductive health.140
This has resulted in the enactment of various measures
promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A.
No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the
"The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded
two cornerstone principles: "principle of no-abortion" and
the "principle of non-coercion."141 As will be discussed
later, these principles are not merely grounded on
administrative policy, but rather, originates from the
constitutional protection expressly provided to afford
protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position
that the question of when life begins is a scientific and

medical issue that should not be decided, at this stage,

without proper hearing and evidence. During the
deliberation, however, it was agreed upon that the
individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life
begins at fertilization.
In answering the question of when life begins, focus
should be made on the particular phrase of Section 12
which reads:
Section 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from
conception. The natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the
support of the Government.
Textually, the Constitution affords protection to the unborn
from conception. This is undisputable because before
conception, there is no unborn to speak of. For said
reason, it is no surprise that the Constitution is mute as to
any proscription prior to conception or when life begins.
The problem has arisen because, amazingly, there are
quarters who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization. They
are waving the view that life begins at implantation.
Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that
conception is synonymous with "fertilization" of the female
ovum by the male sperm.142 On the other side of the
spectrum are those who assert that conception refers to
the "implantation" of the fertilized ovum in the uterus. 143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v.
Judicial Bar Council:144
One of the primary and basic rules in statutory
construction is that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. It
is a well-settled principle of constitutional construction
that the language employed in the Constitution must be
given their ordinary meaning except where technical
terms are employed. As much as possible, the words of
the Constitution should be understood in the sense they
have in common use. What it says according to the text of
the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they
say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First,
because it is assumed that the words in which
constitutional provisions are couched express the
objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it

should ever be present as an important condition for the

rule of law to prevail.
In conformity with the above principle, the traditional
meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that
life begins at fertilization.
Webster's Third New International Dictionary describes it
as the act of becoming pregnant, formation of a viable
zygote; the fertilization that results in a new entity capable
of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term
"conception" as the fecundation of the female ovum by
the male spermatozoon resulting in human life capable of
survival and maturation under normal conditions. 146
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S.
Montano,147 it was written:
Life is not synonymous with civil personality. One need not
acquire civil personality first before he/she could die. Even
a child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the
life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered,
qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing
for the US Supreme Court, said that the State "has respect
for human life at all stages in the pregnancy" and "a
legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus
was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on
the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to
the moment of "fertilization." The records reflect the
following:
Rev. Rigos: In Section 9, page 3, there is a sentence which
reads:
"The State shall equally protect the life of the mother and
the life of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is
when the ovum is fertilized by the sperm that there is
human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as
such, the beginning of human life, it was explained:

Mr. Villegas: I propose to review this issue in a biological

manner. The first question that needs to be answered is: Is
the fertilized ovum alive? Biologically categorically says
yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself.
It begins doing this upon fertilization. Secondly, as it takes
in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs
of life. Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an
equally categorical "yes." At the moment of conception,
the nuclei of the ovum and the sperm rupture. As this
happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46
chromosomes. A chromosome count of 46 is found only and I repeat, only in human cells. Therefore, the fertilized
ovum is human.
Since these questions have been answered affirmatively,
we must conclude that if the fertilized ovum is both alive
and human, then, as night follows day, it must be human
life. Its nature is human.151
Why the Constitution used the phrase "from the moment
of conception" and not "from the moment of fertilization"
was not because of doubt when human life begins, but
rather, because:
Mr. Tingson: x x x x the phrase from the moment of
conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the
simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given
ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is
sufficient for the purpose of writing a Constitution, without
specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view
because according to the Commissioner's own admission,
he would leave it to Congress to define when life begins.
So, Congress can define life to begin from six months after
fertilization; and that would really be very, very,
dangerous. It is now determined by science that life begins
from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress,
too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a
question on that point. Actually, that is one of the
questions I was going to raise during the period of
interpellations but it has been expressed already. The
provision, as proposed right now states:
The State shall equally protect the life of the mother and
the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does
this mean when the egg meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the
right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact
that some of the so-called contraceptives deter the rooting
of the ovum in the uterus. If fertilization has already
occurred, the next process is for the fertilized ovum to
travel towards the uterus and to take root. What happens
with some contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus. Therefore, if we
take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then
that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this
provision.
Mr. Gascon: Yes. So my point is that I do not think it is up
to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based
on the provision as it is now proposed, they are already
considered abortifacient.154
From the deliberations above-quoted, it is apparent that
the Framers of the Constitution emphasized that the State
shall provide equal protection to both the mother and the
unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and
the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from
enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the
Constitution did not intend to ban all contraceptives for
being unconstitutional. In fact, Commissioner Bernardo
Villegas, spearheading the need to have a constitutional
provision on the right to life, recognized that the
determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to
the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or
destroy the fertilized ovum should be deemed an abortive
and thus prohibited. Conversely, contraceptives that
actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to
fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx

xxx

xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US

bases, I am pro-life, to the point that I would like not only
to protect the life of the unborn, but also the lives of the
millions of people in the world by fighting for a nuclearfree world. I would just like to be assured of the legal and
pragmatic implications of the term "protection of the life of
the unborn from the moment of conception." I raised some
of these implications this afternoon when I interjected in
the interpellation of Commissioner Regalado. I would like
to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of

the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this
point in time. Is that the sense of the committee or does it
disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because
contraceptives would be preventive. There is no unborn
yet. That is yet unshaped.

Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that
effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.
Justice Bersamin:
Alright.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking

more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already
been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is
that some of these contraceptives will have to be
unconstitutionalized.

Atty. Noche:

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

fertilization.

That conception begins at fertilization is not bereft of

medical foundation. Mosby s Medical, Nursing, and Allied
Health Dictionary defines conception as "the beginning of
pregnancy usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote."159

Mr. Gascon: Thank you, Mr. Presiding Officer. 156

The fact that not all contraceptives are prohibited by the
1987 Constitution is even admitted by petitioners during
the oral arguments. There it was conceded that tubal
ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is
no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:

And it's not, I have to admit it's not an abortifacient, Your

Honor.158
Medical Meaning

It describes fertilization as "the union of male and female

gametes to form a zygote from which the embryo
develops."160
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at
the moment of fertilization with the union of the egg and
the sperm resulting in the formation of a new individual,
with a unique genetic composition that dictates all
developmental stages that ensue.
Similarly, recent medical research on the matter also
reveals that: "Human development begins after the union
of male and female gametes or germ cells during a
process known as fertilization (conception). Fertilization is
a sequence of events that begins with the contact of a
sperm (spermatozoon) with a secondary oocyte (ovum)
and ends with the fusion of their pronuclei (the haploid
nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum,
known as a zygote, is a large diploid cell that is the
beginning, or primordium, of a human being."162

To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms
sometimes have porosity?

The authors of Human Embryology & Teratology163 mirror

the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark
because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The
combination of 23 chromosomes present in each
pronucleus results in 46 chromosomes in the zygote. Thus
the diploid number is restored and the embryonic genome
is formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical
Association came out with a "Paper on the Reproductive
Health Bill (Responsible Parenthood Bill)" and therein
concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at
the same time that PMA maintains its strong position that

fertilization is sacred because it is at this stage that

conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that
destroying those new lives is never licit, no matter what
the purported good outcome would be. In terms of biology
and human embryology, a human being begins
immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where
only a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot escape
this objective scientific fact.
The scientific evidence supports the conclusion that a
zygote is a human organism and that the life of a new
human being commences at a scientifically well defined
"moment of conception." This conclusion is objective,
consistent with the factual evidence, and independent of
any specific ethical, moral, political, or religious view of
human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or
understood under medical parlance, and more
importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is
a human organism and that the life of a new human being
commences at a scientifically well-defined moment of
conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the
theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and
conception are two distinct and successive stages in the
reproductive process. They are not identical and
synonymous."166 Citing a letter of the WHO, he wrote that
"medical authorities confirm that the implantation of the
fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically
detected."167
This theory of implantation as the beginning of life is
devoid of any legal or scientific mooring. It does not
pertain to the beginning of life but to the viability of the
fetus. The fertilized ovum/zygote is not an inanimate
object - it is a living human being complete with DNA and
46 chromosomes.168 Implantation has been conceptualized
only for convenience by those who had population control
in mind. To adopt it would constitute textual infidelity not
only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this
position.
If such theory would be accepted, it would unnervingly
legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It
would be provocative and further aggravate religiousbased divisiveness.
It would legally permit what the Constitution proscribes abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the
1987 Constitution in protecting the life of the unborn from

conception was to prevent the Legislature from enacting a

measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the
Framers was captured in the record of the proceedings of
the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no
pro-abortion laws ever passed by Congress or any proabortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with
this intent and actually proscribes abortion. While the
Court has opted not to make any determination, at this
stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the
moment of fertilization. As pointed out by Justice Carpio,
the RH Law is replete with provisions that embody the
policy of the law to protect to the fertilized ovum and that
it should be afforded safe travel to the uterus for
implantation.170
Moreover, the RH Law recognizes that abortion is a crime
under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized
ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act,
the following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full
range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by
addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the
enhancement of life and personal relations. The elements
of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion
complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of
individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and
timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion
and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive
health rights do not include abortion, and access to
abortifacients.
3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws

against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order,
rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent
in prohibiting abortifacients. To be clear, Section 4(a) of
the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces
abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection
must be afforded from the moment of fertilization. By
using the word " or," the RH Law prohibits not only drugs
or devices that prevent implantation, but also those that
induce abortion and those that induce the destruction of a
fetus inside the mother's womb. Thus, an abortifacient is
any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the
mother's womb; or
(c) Prevents the fertilized ovum to reach and be
implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the
Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect
it. The conclusion becomes clear because the RH Law,
first, prohibits any drug or device that induces abortion
(first kind), which, as discussed exhaustively above, refers
to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device
the fertilized ovum to reach and be implanted in the
mother's womb (third kind).
By expressly declaring that any drug or device that
prevents the fertilized ovum to reach and be implanted in
the mother's womb is an abortifacient (third kind), the RH
Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also
does not declare either that protection will only be given
upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the
fertilized ovum must be protected the moment it becomes
existent - all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum
implants - there is nothing to prevent any drug or device
from killing or destroying the fertilized ovum prior to
implantation.

From the foregoing, the Court finds that inasmuch as it

affords protection to the fertilized ovum, the RH Law does
not sanction abortion. To repeat, it is the Court's position
that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its
viability is sustained but that instance of implantation is
not the point of beginning of life. It started earlier. And as
defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum
or prevents the fertilized ovum to reach and be implanted
in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso
under Section 9 of the law that "any product or supply
included or to be included in the EDL must have a
certification from the FDA that said product and supply is
made available on the condition that it is not to be used as
an abortifacient" as empty as it is absurd. The FDA, with
all its expertise, cannot fully attest that a drug or device
will not all be used as an abortifacient, since the agency
cannot be present in every instance when the
contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to
safe, legal and non-abortifacient contraceptives, however,
the Court finds that the proviso of Section 9, as worded,
should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL
must have a certification from the FDA that said product
and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of
the same section that provides:
Provided, further, That the foregoing offices shall not
purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will
be used for such purpose and their other forms or
equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the
authors of the RH-IRR gravely abused their office when
they redefined the meaning of abortifacient. The RH Law
defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act,
the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces
abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines
"abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall
be defined as follows:
a) Abortifacient refers to any drug or device that primarily
induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb upon

determination of the Food and Drug Administration (FDA).

[Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is
redefined, viz:
j) Contraceptive refers to any safe, legal, effective and
scientifically proven modern family planning method,
device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a
fertilized ovum or prevent a fertilized ovum from being
implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only
those that primarily induce abortion or the destruction of a
fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's
womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice
Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of
the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in
Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for
the approval of contraceptives which may harm or destroy
the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With
such qualification in the RH-IRR, it appears to insinuate
that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as
pertinent here, the prevention of the implantation of the
fertilized ovum.
For the same reason, this definition of "contraceptive"
would permit the approval of contraceptives which are
actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the
certification by the FDA that these contraceptives cannot
act as abortive. With this, together with the definition of
an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable
conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives
that do not have the primary action of causing abortion or
the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be
implanted in the mother's womb, but also those that do
not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy
prohibiting abortion, and in line with the principle that laws
should be construed in a manner that its constitutionality
is sustained, the RH Law and its implementing rules must
be consistent with each other in prohibiting abortion. Thus,
the word " primarily" in Section 3.0l(a) and G) of the RHIRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only

those contraceptives that have the primary effect of being

an abortive would effectively "open the floodgates to the
approval of contraceptives which may harm or destroy the
life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no
abortion" embodied in the constitutional protection of life
must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to
health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and
family products and supplies in the National Drug
Formulary and the inclusion of the same in the regular
purchase of essential medicines and supplies of all
national hospitals.176 Citing various studies on the matter,
the petitioners posit that the risk of developing breast and
cervical cancer is greatly increased in women who use oral
contraceptives as compared to women who never use
them. They point out that the risk is decreased when the
use of contraceptives is discontinued. Further, it is
contended that the use of combined oral contraceptive
pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic
stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health"
and "sexual health" under Sections 4(p)178 and (w)179 of the
RH Law, the petitioners assert that the assailed legislation
only seeks to ensure that women have pleasurable and
satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of
the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy.
Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a
danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right
to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health.
Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right
to health of the people and instill health consciousness
among them.
A portion of Article XIII also specifically provides for the
States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which
shall endeavor to make essential goods, health and other
social services available to all the people at affordable
cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical
care to paupers.
Section 12. The State shall establish and maintain an
effective food and drug regulatory system and undertake

appropriate health, manpower development, and research,

responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for
disabled person for their rehabilitation, self-development,
and self-reliance, and their integration into the
mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these
provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for
legislation to implement these self-executing
provisions.182 In Manila Prince Hotel v. GSIS,183 it was
stated:
x x x Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of
self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the
prevailing view is, as it has always been, that
... in case of doubt, the Constitution should be considered
self-executing rather than non-self-executing. . . . Unless
the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the
petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI
prays that the status quo - under R.A. No. 5921 and R.A.
No. 4729, the sale and distribution of contraceptives are
not prohibited when they are dispensed by a prescription
of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in
this regard is to leave intact the provisions of R.A. No.
4729. There is no intention at all to do away with it. It is
still a good law and its requirements are still in to be
complied with. Thus, the Court agrees with the
observation of respondent Lagman that the effectivity of
the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still
require the prescription of a licensed physician. With R.A.
No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe
are made available to the public. As aptly explained by
respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of

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

The foregoing safeguards should be read in connection

with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning
Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the
whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and
implement this procurement and distribution program. The
supply and budget allotments shall be based on, among
others, the current levels and projections of the following:
(a) Number of women of reproductive age and
couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of
method used; and

Stated differently, the provision in Section 9 covering the

inclusion of hormonal contraceptives, intra-uterine
devices, injectables, and other safe, legal, nonabortifacient and effective family planning products and
supplies by the National Drug Formulary in the EDL is not
mandatory. There must first be a determination by the FDA
that they are in fact safe, legal, non-abortifacient and
effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and
effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement,
distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the
DOH.
Thus, in the distribution by the DOH of contraceptive drugs
and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the
contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that
the actual dispensation of these contraceptive drugs and
devices will done following a prescription of a qualified
medical practitioner. The distribution of contraceptive
drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As
pointed out by Justice De Castro, a heavy responsibility
and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting
from or incidental to their use.187
At any rate, it bears pointing out that not a single
contraceptive has yet been submitted to the FDA pursuant
to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the
FDA as safe, it being the agency tasked to ensure that
food and medicines available to the public are safe for
public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is
premature. Indeed, the various kinds of contraceptives
must first be measured up to the constitutional yardstick
as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress
cannot legislate that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first
sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the
mandatory "shall" is to be construed as operative only
after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or
intrauterine device is safe and non-abortifacient. The
provision of the third sentence concerning the
requirements for the inclusion or removal of a particular
family planning supply from the EDL supports this
construction.

While contraceptives and procedures like vasectomy and

tubal ligation are not covered by the constitutional
proscription, there are those who, because of their
religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil.
Some of these are medical practitioners who essentially
claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and
cooperation in all things dealing with contraceptive use.
Petitioner PAX explained that "contraception is gravely
opposed to marital chastity, it is contrary to the good of
the transmission of life, and to the reciprocal self-giving of
the spouses; it harms true love and denies the sovereign
rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement
of contraceptives, arguing that the expenditure of their
taxes on contraceptives violates the guarantee of religious
freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law
attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional
guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer
the patient seeking reproductive health services to
another medical practitioner who would be able to provide
for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the
very thing he refuses to do without violating his/her
religious beliefs.190
They further argue that even if the conscientious
objector's duty to refer is recognized, the recognition is
unduly limited, because although it allows a conscientious
objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no
escape is afforded the conscientious objector in Section 23
(a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those
working in public health facilities referred to in Section 7;
b) public officers involved in the implementation of the law
referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also
not recognize.191

Petitioner Echavez and the other medical practitioners

meanwhile, contend that the requirement to refer the
matter to another health care service provider is still
considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do
the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law
are too secular that they tend to disregard the religion of
Filipinos. Authorizing the use of contraceptives with
abortive effects, mandatory sex education, mandatory
pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom
they are required.192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking
reproductive health care services to another provider
infringes on one's freedom of religion as it forces the
objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive
acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show
compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat
that endangers state interests. It does not explain how the
rights of the people (to equality, non-discrimination of
rights, sustainable human development, health, education,
information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the
demands of responsible parenthood) are being threatened
or are not being met as to justify the impairment of
religious freedom.194
Finally, the petitioners also question Section 15 of the RH
Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a
certificate of compliance. They claim that the provision
forces individuals to participate in the implementation of
the RH Law even if it contravenes their religious
beliefs.195 As the assailed law dangles the threat of penalty
of fine and/or imprisonment in case of non-compliance
with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be
struck down as it runs afoul to the constitutional
guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH
Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.196 They point
out that the RH Law only seeks to serve the public interest
by providing accessible, effective and quality reproductive
health services to ensure maternal and child health, in line
with the State's duty to bring to reality the social justice
health guarantees of the Constitution,197 and that what the
law only prohibits are those acts or practices, which
deprive others of their right to reproductive health.198 They
assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural
family planning should be allowed, the petitioners are
effectively going against the constitutional right to

religious freedom, the same right they invoked to assail

the constitutionality of the RH Law.200 In other words, by
seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural
family planning methods and impose this on the entire
citizenry.201
With respect to the duty to refer, the respondents insist
that the same does not violate the constitutional
guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the
religious objector, on one hand, who is allowed to keep
silent but is required to refer -and that of the citizen who
needs access to information and who has the right to
expect that the health care professional in front of her will
act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the
rights of others.202
Whatever burden is placed on the petitioner's religious
freedom is minimal as the duty to refer is limited in
duration, location and impact.203
Regarding mandatory family planning seminars under
Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples
to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is
argued that those who object to any information received
on account of their attendance in the required seminars
are not compelled to accept information given to them.
They are completely free to reject any information they do
not agree with and retain the freedom to decide on
matters of family life without intervention of the State. 204
For their part, respondents De Venecia et al., dispute the
notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on
contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds.
History has shown us that our government, in law and in
practice, has allowed these various religious, cultural,
social and racial groups to thrive in a single society
together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him
to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals
and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our
posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice,

freedom, love, equality, and peace, do ordain and

promulgate this Constitution.

dignitary is assigned to the armed forces, or to any penal

institution, or government orphanage or leprosarium.

The Filipino people in "imploring the aid of Almighty God "

manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and
historical experience. As this is embodied in the preamble,
it means that the State recognizes with respect the
influence of religion in so far as it instills into the mind the
purest principles of morality.205 Moreover, in recognition of
the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax
exemption of church property, salary of religious officers in
government institutions, and optional religious instructions
in public schools.

In short, the constitutional assurance of religious freedom

provides two guarantees: the Establishment Clause and
the Free Exercise Clause.

The Framers, however, felt the need to put up a strong

barrier so that the State would not encroach into the
affairs of the church, and vice-versa. The principle of
separation of Church and State was, thus, enshrined in
Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be
inviolable.
Verily, the principle of separation of Church and State is
based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much
less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another.
On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry.
It cannot demand that the nation follow its beliefs, even if
it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion
should ever be preferred over another, the Constitution in
the above-cited provision utilizes the term "church" in its
generic sense, which refers to a temple, a mosque, an
iglesia, or any other house of God which metaphorically
symbolizes a religious organization. Thus, the "Church"
means the religious congregations collectively.
Balancing the benefits that religion affords and the need to
provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down
the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall
be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as
such, except when such priest, preacher, minister, or

The establishment clause "principally prohibits the State

from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in
affairs among religious groups."206 Essentially, it prohibits
the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is
the respect for the inviolability of the human
conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering
with the outside manifestations of one's belief and
faith.208 Explaining the concept of religious freedom, the
Court, in Victoriano v. Elizalde Rope Workers
Union209 wrote:
The constitutional provisions not only prohibits legislation
for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of
the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153),
but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said
that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of
others and with the common good. Any legislation whose
effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner,
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the
state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d.
563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420,
444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not
designed to serve contradictory purposes. They have a
single goal-to promote freedom of individual religious
beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious
beliefs with penalties for religious beliefs and practice,
while the establishment clause prohibits government from
inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses
were intended to deny government the power to use
either the carrot or the stick to influence individual
religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion
is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless

bounded only by one's imagination and thought. So is the
freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards. But between
the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.212
The second part however, is limited and subject to the
awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts
that affect the public welfare." 213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause
and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the
Court in Estrada v. Escritor, (Escritor) 214 where it was
stated "that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution."215 In the
same case, it was further explained that"
The benevolent neutrality theory believes that with
respect to these governmental actions, accommodation of
religion may be allowed, not to promote the government's
favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden on, or
facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality
of a facially neutral law, but an exemption from its
application or its 'burdensome effect,' whether by the
legislature or the courts."217
In ascertaining the limits of the exercise of religious
freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and
that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the
Court mentioned the "clear and present danger" test but
did not employ it. Nevertheless, this test continued to be
cited in subsequent cases on religious liberty. The Gerona
case then pronounced that the test of permissibility of
religious freedom is whether it violates the established
institutions of society and law. The Victoriano case
mentioned the "immediate and grave danger" test as well
as the doctrine that a law of general applicability may
burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The
case also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano , German went back to
the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test.
The fairly recent case of Iglesia ni Cristo went back to the "
clear and present danger" test in the maiden case of A
merican Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and

immediate danger" test involved, in one form or another,

religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not
prevail over established institutions of society and law.
Gerona, however, which was the authority cited by
German has been overruled by Ebralinag which employed
the "grave and immediate danger" test . Victoriano was
the only case that employed the "compelling state
interest" test, but as explained previously, the use of the
test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican
Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus
not appropriate in this jurisdiction. Similar to Victoriano,
the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is
proper where conduct is involved for the whole gamut of
human conduct has different effects on the state's
interests: some effects may be immediate and short-term
while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the state
would suffice to prevail over the right to religious freedom
as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable
and sacred of all human rights", in the words of Jefferson.
This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised
upon an acknowledgment of such higher sovereignty, thus
the Filipinos implore the "aid of Almighty God in order to
build a just and humane society and establish a
government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling
interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining
which shall prevail between the state's interest and
religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering
religious liberty while at the same time affording
protection to the paramount interests of the state. This
was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount interests
of the state, seeks to protect the very state, without
which, religious liberty will not be preserved. [Emphases in
the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the
Court to determine whether the use of contraceptives or
one's participation in the support of modem reproductive
health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's
dogma or belief. For the Court has declared that matters
dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside

the province of the civil courts."220 The jurisdiction of the

Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it
has authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee
of religious freedom.
At first blush, it appears that the RH Law recognizes and
respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to
violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights
of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes
reproductive health, the right to education and
information, and the right to choose and make decisions
for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of
responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social
institution and the foundation of the family which in turn is
the foundation of the nation. Pursuant thereto, the State
shall defend:
(a) The right of spouses to found a family in accordance
with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and
access, without bias, to all methods of family planning,
including effective natural and modern methods which
have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidencebased medical research standards such as those
registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization:
Provided, That the State shall also provide funding support
to promote modern natural methods of family planning,
especially the Billings Ovulation Method, consistent with
the needs of acceptors and their religious convictions.
[Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable
individuals and couples to have the number of children
they desire with due consideration to the health,
particularly of women, and the resources available and
affordable to them and in accordance with existing laws,
public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and
choice of family planning methods that are in accordance
with their religious convictions and cultural beliefs, taking
into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations
(NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and
communities is crucial to ensure that reproductive health
and population and development policies, plans, and

programs will address the priority needs of women, the

poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a
parent to respond to the needs and aspirations of the
family and children. It is likewise a shared responsibility
between parents to determine and achieve the desired
number of children, spacing and timing of their children
according to their own family life aspirations, taking into
account psychological preparedness, health status,
sociocultural and economic concerns consistent with their
religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were
enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the
principle of benevolent neutrality, their beliefs should be
respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts
what the government can do with religion, it also limits
what religious sects can or cannot do with the
government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor
can they not cause the government to restrict other
groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establishing a
state religion.
Consequently, the petitioners are misguided in their
supposition that the State cannot enhance its population
control program through the RH Law simply because the
promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to
pursue its legitimate secular objectives without being
dictated upon by the policies of any one religion. One
cannot refuse to pay his taxes simply because it will cloud
his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things
that are Caesar's and unto God the things that are
God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote
reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the
same conclusion cannot be reached with respect to
Sections 7, 23 and 24 thereof. The said provisions
commonly mandate that a hospital or a medical
practitioner to immediately refer a person seeking health
care and services under the law to another accessible
healthcare provider despite their conscientious objections
based on religious or ethical beliefs.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or practice,
the compelling state interest test in line with the Court's
espousal of the Doctrine of Benevolent Neutrality in
Escritor, finds application. In this case, the conscientious
objector's claim to religious freedom would warrant an
exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling
state interest in the accomplishment of an important

secular objective. Necessarily so, the plea of conscientious

objectors for exemption from the RH Law deserves no less
than strict scrutiny.
In applying the test, the first inquiry is whether a
conscientious objector's right to religious freedom has
been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One
side coaxes him into obedience to the law and the
abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of
penalty. The scenario is an illustration of the predicament
of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer
imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking
information on modem reproductive health products,
services, procedures and methods, his conscience is
immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner
Joaquin A. Bernas (Commissioner Bernas) has written, "at
the basis of the free exercise clause is the respect for the
inviolability of the human conscience.222
Though it has been said that the act of referral is an optout clause, it is, however, a false compromise because it
makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what
they cannot do directly. One may not be the principal, but
he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is
necessarily intertwined with the right to free speech, it
being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the
constitutional guarantee of religious freedom follows the
protection that should be afforded to individuals in
communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights
guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his
mind.223 While the RH Law seeks to provide freedom of
choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether
direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information
on reproductive health products, services, procedures and
methods to enable the people to determine the timing,
number and spacing of the birth of their children, the
Court is of the strong view that the religious freedom of
health providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious objector
should be exempt from compliance with the mandates of
the RH Law. If he would be compelled to act contrary to his
religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional
right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of
the Court of Session, found in the case of Doogan and
Wood v. NHS Greater Glasgow and Clyde Health

Board,225 that the midwives claiming to be conscientious

objectors under the provisions of Scotland's Abortion Act
of 1967, could not be required to delegate, supervise or
support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking
part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty." 227
While the said case did not cover the act of referral, the
applicable principle was the same - they could not be
forced to assist abortions if it would be against their
conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity
specialty hospitals and hospitals owned and operated by a
religious group and health care service providers.
Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their
duty to refer under Section 7 and Section 23(a)(3), the
Court deems that it must be struck down for being
violative of the freedom of religion. The same applies to
Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information
regarding programs and services and in the performance
of reproductive health procedures, the religious freedom of
health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines,
Inc. v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that
it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of
others and with the common good."10
The Court is not oblivious to the view that penalties
provided by law endeavour to ensure compliance. Without
set consequences for either an active violation or mere
inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective
implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval.
The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who
declines to perform reproductive health procedure on a
patient because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as
provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the
RPRH Act and these Rules, cannot be considered as
conscientious objectors.

This is discriminatory and violative of the equal protection

clause. The conscientious objection clause should be
equally protective of the religious belief of public health
officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of
the law. The protection accorded to other conscientious
objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or
private sector. After all, the freedom to believe is intrinsic
in every individual and the protective robe that guarantees
its free exercise is not taken off even if one acquires
employment in the government.
It should be stressed that intellectual liberty occupies a
place inferior to none in the hierarchy of human values.
The mind must be free to think what it wills, whether in
the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media and, thus,
seek other candid views in occasions or gatherings or in
more permanent aggrupation. Embraced in such concept
then are freedom of religion, freedom of speech, of the
press, assembly and petition, and freedom of
association.229
The discriminatory provision is void not only because no
such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the
Constitution. Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the law must
prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- inIntervention on page 52, you mentioned RH Law is replete
with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this
with qualifications. Now, you have read, I presumed you
have read the IRR-Implementing Rules and Regulations of
the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long
IRR and I have not thoroughly dissected the nuances of
the provisions.

skilled health professionals cannot be considered

conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the
law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on
whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory character
of the law is the least intrusive means to achieve the
objectives of the law.
Unfortunately, a deep scrutiny of the respondents'
submissions proved to be in vain. The OSG was curiously
silent in the establishment of a more compelling state
interest that would rationalize the curbing of a
conscientious objector's right not to adhere to an action
contrary to his religious convictions. During the oral
arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes
disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to
refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad.
What is the compelling State interest in imposing this duty
to refer to a conscientious objector which refuses to do so
because of his religious belief?

Justice Mendoza:
Senior State Solicitor Hilbay:
I will read to you one provision. It's Section 5.24. This I
cannot find in the RH Law. But in the IRR it says: " ....
skilled health professionals such as provincial, city or
municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of
their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you
agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the
private practitioners who can be conscientious objectors,

Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this
burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the
standard is a compelling State interest, this is an ordinary
health legislation involving professionals. This is not a free
speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between
medical doctors and their patients.231

Resultantly, the Court finds no compelling state interest

which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the
security and welfare of the community can justify the
infringement of religious freedom. If the government fails
to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to
believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is
violated when one is compelled to act against one's belief
or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger
to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who
plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on
whether or not the mother decides to adopt or use the
information, product, method or supply given to her or
whether she even decides to become pregnant at all. On
the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment
a patient seeks consultation on reproductive health
matters.
Moreover, granting that a compelling interest exists to
justify the infringement of the conscientious objector's
religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override a person's
fundamental right to religious freedom. Also, the
respondents have not presented any government effort
exerted to show that the means it takes to achieve its
legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring
would only be momentary, considering that the act of
referral by a conscientious objector is the very action
being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other
means can be undertaken by the State to achieve its
objective without violating the rights of the conscientious
objector. The health concerns of women may still be
addressed by other practitioners who may perform
reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who
is forced to perform an act in utter reluctance deserves
the protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already taken by
the Legislature to ensure that the right to health is
protected. Considering other legislations as they stand
now, R.A . No. 4 729 or the Contraceptive Act, R.A. No.
6365 or "The Population Act of the Philippines" and R.A.
No. 9710, otherwise known as "The Magna Carta of
Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of
Magna Carta on comprehensive health services and
programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive
Health Services. - The State shall, at all times, provide for
a comprehensive, culture-sensitive, and gender-responsive
health services and programs covering all stages of a
woman's life cycle and which addresses the major causes
of women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect
shall be accorded to women's religious convictions, the

rights of the spouses to found a family in accordance with

their religious convictions, and the demands of responsible
parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and
post-natal services to address pregnancy
and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and
effective methods of family planning;
(4) Family and State collaboration in
youth sexuality education and health
services without prejudice to the primary
right and duty of parents to educate
their children;
(5) Prevention and management of
reproductive tract infections, including
sexually transmitted diseases, HIV, and
AIDS;
(6) Prevention and management of
reproductive tract cancers like breast
and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and
management of pregnancy-related
complications;
(8) In cases of violence against women
and children, women and children
victims and survivors shall be provided
with comprehensive health services that
include psychosocial, therapeutic,
medical, and legal interventions and
assistance towards healing, recovery,
and empowerment;
(9) Prevention and management of
infertility and sexual dysfunction
pursuant to ethical norms and medical
standards;
(10) Care of the elderly women beyond
their child-bearing years; and
(11) Management, treatment, and
intervention of mental health problems
of women and girls. In addition, healthy
lifestyle activities are encouraged and
promoted through programs and
projects as strategies in the prevention
of diseases.
(b) Comprehensive Health Information and Education. The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information
and education on all the above-stated aspects of women's
health in government education and training programs,
with due regard to the following:

(1) The natural and primary right and

duty of parents in the rearing of the
youth and the development of moral
character and the right of children to be
brought up in an atmosphere of morality
and rectitude for the enrichment and
strengthening of character;

impossible to save both, provided that no direct harm is

intended to the other. If the above principles are observed,
the loss of the child's life or the mother's life is not
intentional and, therefore, unavoidable. Hence, the doctor
would not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives are
equally valuable.238

(2) The formation of a person's sexuality

that affirms human dignity; and

Accordingly, if it is necessary to save the life of a mother,

procedures endangering the life of the child may be
resorted to even if is against the religious sentiments of
the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case
would have been more than justified considering the life
he would be able to save.

(3) Ethical, legal, safe, and effective

family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay
eventually replied that the compelling state interest was
"Fifteen maternal deaths per day, hundreds of thousands
of unintended pregnancies, lives changed, x x x." 235 He,
however, failed to substantiate this point by concrete facts
and figures from reputable sources.
The undisputed fact, however, is that the World Health
Organization reported that the Filipino maternal mortality
rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time.
Despite such revelation, the proponents still insist that
such number of maternal deaths constitute a compelling
state interest.
Granting that there are still deficiencies and flaws in the
delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a
valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render
reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be
made in life-threatening cases that require the
performance of emergency procedures. In these
situations, the right to life of the mother should be given
preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting
to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause
that we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and
the life of a child, the doctor is morally obliged always to
try to save both lives. If, however, it is impossible, the
resulting death to one should not be deliberate. Atty.
Noche explained:
Principle of Double-Effect. - May we please remind the
principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the
child is never justified to bring about a "good" effect. In a
conflict situation between the life of the child and the life
of the mother, the doctor is morally obliged always to try
to save both lives. However, he can act in favor of one
(not necessarily the mother) when it is medically

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a
condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power
by the government. A cursory reading of the assailed
provision bares that the religious freedom of the
petitioners is not at all violated. All the law requires is for
would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does
not even mandate the type of family planning methods to
be included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who receive
any information during their attendance in the required
seminars are not compelled to accept the information
given to them, are completely free to reject the
information they find unacceptable, and retain the
freedom to decide on matters of family life without the
intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a)
(2) (i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that
it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total
development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions
strengthening the family as it is the basic social institution.
In fact, one article, Article XV, is devoted entirely to the
family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:

The right of spouses to found a family in accordance with

their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care
and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions
prejudicial to their development;
The right of the family to a family living wage and income;
and
The right of families or family assoc1at1ons to participate
in the planning and implementation of policies and
programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to
control population growth, contains provisions which tend
to wreck the family as a solid social institution. It bars the
husband and/or the father from participating in the
decision making process regarding their common future
progeny. It likewise deprives the parents of their authority
over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or
private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive
health procedures on any person of legal age on the
ground of lack of consent or authorization of the following
persons in the following instances:
(i) Spousal consent in case of married persons: provided,
That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis
supplied]
The above provision refers to reproductive health
procedures like tubal litigation and vasectomy which, by
their very nature, should require mutual consent and
decision between the husband and the wife as they affect
issues intimately related to the founding of a family.
Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a
family." One person cannot found a family. The right,
therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and
implementation of policies and programs that affect them
" is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual
decision-making. By giving absolute authority to the
spouse who would undergo a procedure, and barring the
other spouse from participating in the decision would drive
a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the
family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State
to protect marriage as an inviolable social institution. 241

Decision-making involving a reproductive health procedure

is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect
their future as a family because the size of the family or
the number of their children significantly matters. The
decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one
cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it
prejudices the State, which has not shown any compelling
interest, the State should see to it that they chart their
destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section
19( c) of R.A. No. 9710, otherwise known as the "Magna
Carta for Women," provides that women shall have equal
rights in all matters relating to marriage and family
relations, including the joint decision on the number and
spacing of their children. Indeed, responsible parenthood,
as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional
mandate to protect and strengthen the family by giving to
only one spouse the absolute authority to decide whether
to undergo reproductive health procedure.242
The right to chart their own destiny together falls within
the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal
privacy guaranteed by the Constitution. In our jurisdiction,
the right to privacy was first recognized in Marje v.
Mutuc,243 where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional
protection."244 Marje adopted the ruling of the US Supreme
Court in Griswold v. Connecticut,245 where Justice William
O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights
-older than our political parties, older than our school
system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is
an association for as noble a purpose as any involved in
our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which
made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of
the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by
couples. Justice Douglas in Grisworld wrote that "specific
guarantees in the Bill of Rights have penumbras, formed
by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of
privacy."246
At any rate, in case of conflict between the couple, the
courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in
cases where the minor, who will be undergoing a
procedure, is already a parent or has had a miscarriage.
Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to
family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to
modern methods of family planning without written
consent from their parents or guardian/s except when the
minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision
except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision
making process of the minor with regard to family
planning. Even if she is not yet emancipated, the parental
authority is already cut off just because there is a need to
tame population growth.
It is precisely in such situations when a minor parent
needs the comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother and
father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly
anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the
constitutional mandate that "the natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall
receive the support of the Government."247 In this regard,
Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to
modify the right of parents. It imports the assertion that
the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents
to exercise parental control over their minor-child or the
right of the spouses to mutually decide on matters which
very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in
the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held
Filipino tradition of maintaining close family ties and
violative of the recognition that the State affords couples
entering into the special contract of marriage to as one
unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take
over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has
had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the
exception provided in the second paragraph of Section 7
or with respect to the consenting spouse under Section
23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family
planning services, on one hand, and access to the
reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as
access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by
the minor referred to under the exception in the second

paragraph of Section 7 that would enable her to take

proper care of her own body and that of her unborn child.
After all, Section 12, Article II of the Constitution mandates
the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a
person to make informed decisions is essential in the
protection and maintenance of ones' health, access to
such information with respect to reproductive health must
be allowed. In this situation, the fear that parents might be
deprived of their parental control is unfounded because
they are not prohibited to exercise parental guidance and
control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception
must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the
life of the minor who has already suffered a miscarriage
and that of the spouse should not be put at grave risk
simply for lack of consent. It should be emphasized that no
person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is,
the right to life.
In this connection, the second sentence of Section 23(a)(2)
(ii)249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective
surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are
"non-surgical procedures." Save for the two exceptions
discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right
of parental authority. To deny them of this right would be
an affront to the constitutional mandate to protect and
strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to
Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education
under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the
petitioners, these provisions effectively force educational
institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the
United States and statistical data gathered in the country,
the petitioners aver that the prevalence of contraceptives
has led to an increase of out-of-wedlock births; divorce
and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the
validity of Section 14 of the RH Law is premature because
the Department of Education, Culture and Sports has yet
to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content,
manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict
the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of
this particular issue, the Court declines to rule on its
constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution

provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the
1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing
the youth to become productive members of society.
Notably, it places more importance on the role of parents
in the development of their children by recognizing that
said role shall be "primary," that is, that the right of
parents in upbringing the youth is superior to that of the
State.252
It is also the inherent right of the State to act as parens
patriae to aid parents in the moral development of the
youth. Indeed, the Constitution makes mention of the
importance of developing the youth and their important
role in nation building.253 Considering that Section 14
provides not only for the age-appropriate-reproductive
health education, but also for values formation; the
development of knowledge and skills in self-protection
against discrimination; sexual abuse and violence against
women and children and other forms of gender based
violence and teen pregnancy; physical, social and
emotional changes in adolescents; women's rights and
children's rights; responsible teenage behavior; gender
and development; and responsible parenthood, and that
Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of
the RH Law itself provides for the teaching of responsible
teenage behavior, gender sensitivity and physical and
emotional changes among adolescents - the Court finds
that the legal mandate provided under the assailed
provision supplements, rather than supplants, the rights
and duties of the parents in the moral development of
their children.
Furthermore, as Section 14 also mandates that the
mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it
could very well be said that it will be in line with the
religious beliefs of the petitioners. By imposing such a
condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1)
of the Constitution is without merit.254
While the Court notes the possibility that educators might
raise their objection to their participation in the
reproductive health education program provided under
Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its
judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from
vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions
a "private health service provider" among those who may
be held punishable but does not define who is a "private
health care service provider." They argue that confusion
further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive

health information under Section 23(a)(l), or from

rendering reproductive health procedures under Section
23(a)(2).
Finally, it is averred that the RH Law punishes the
withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when
it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ
as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair
notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words
used in a statute are vague, words must not only be taken
in accordance with their plain meaning alone, but also in
relation to other parts of the statute. It is a rule that every
part of the statute must be interpreted with reference to
the context, that is, every part of it must be construed
together with the other parts and kept subservient to the
general intent of the whole enactment.256
As correctly noted by the OSG, in determining the
definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public
health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and
operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals
suffering from illness, disease, injury, disability or
deformity, or in need of obstetrical or other medical and
nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or
(4) barangay health worker who has undergone training
programs under any accredited government and NGO and
who voluntarily renders primarily health care services in
the community after having been accredited to function as
such by the local health board in accordance with the
guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care
institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of
confusion for the obvious reason that they are used
synonymously.
The Court need not belabor the issue of whether the right
to be exempt from being obligated to render reproductive
health service and modem family planning methods,
includes exemption from being obligated to give
reproductive health information and to render reproductive
health procedures. Clearly, subject to the qualifications
and exemptions earlier discussed, the right to be exempt
from being obligated to render reproductive health service
and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive
health information and to render reproductive health
procedures. The terms "service" and "methods" are broad

enough to include the providing of information and the

rendering of medical procedures.
The same can be said with respect to the contention that
the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and
services. For ready reference, the assailed provision is
hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are
prohibited:
(a) Any health care service provider, whether public or
private, who shall:
(1) Knowingly withhold information or restrict the
dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on
reproductive health including the right to informed choice
and access to a full range of legal, medically-safe, nonabortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes
failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word
"knowingly" means with awareness or deliberateness that
is intentional.258 Used together in relation to Section 23(a)
(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and
effect of programs and services on reproductive health.
Public health and safety demand that health care service
providers give their honest and correct medical
information in accordance with what is acceptable in
medical practice. While health care service providers are
not barred from expressing their own personal opinions
regarding the programs and services on reproductive
health, their right must be tempered with the need to
provide public health and safety. The public deserves no
less.
7-Egual Protection
The petitioners also claim that the RH Law violates the
equal protection clause under the Constitution as it
discriminates against the poor because it makes them the
primary target of the government program that promotes
contraceptive use . They argue that, rather than
promoting reproductive health among the poor, the RH
Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially
those mentioned in the guiding principles259 and definition
of terms260 of the law.
They add that the exclusion of private educational
institutions from the mandatory reproductive health
education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had
the occasion to expound on the concept of equal
protection. Thus:
One of the basic principles on which this government was
founded is that of the equality of right which is embodied

in Section 1, Article III of the 1987 Constitution. The equal

protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied
in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general
may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to
cut it down is the equal protection clause.
"According to a long line of decisions, equal protection
simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed." It "requires public bodies and
inst itutions to treat similarly situated individuals in a
similar manner." "The purpose of the equal protection
clause is to secure every person within a state's
jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the state's
duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern
impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a
legitimate governmental objective."
The equal protection clause is aimed at all official state
actions, not just those of the legislature. 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.
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. "Superficial differences do not
make for a valid classification."
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."
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. [Emphases supplied;

citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the
needs of the underprivileged by providing that they be
given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which
shall endeavor to make essential goods, health and other
social services available to all the people at affordable
cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical
care to paupers.
It should be noted that Section 7 of the RH Law prioritizes
poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is,
therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number. While the
RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the
population growth rate is incidental to the advancement of
reproductive health."
Moreover, the RH Law does not prescribe the number of
children a couple may have and does not impose
conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks
to charge couples with the duty to have children only if
they would raise them in a truly humane way, a deeper
look into its provisions shows that what the law seeks to
do is to simply provide priority to the poor in the
implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational
institutions from the mandatory reproductive health
education program under Section 14, suffice it to state
that the mere fact that the children of those who are less
fortunate attend public educational institutions does not
amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial
distinction rests between public educational institutions
and private educational institutions, particularly because
there is a need to recognize the academic freedom of
private educational institutions especially with respect to
religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is
constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that
Section 17 of the assailed legislation requiring private and
non-government health care service providers to render
forty-eight (48) hours of pro bono reproductive health
services, actually amounts to involuntary servitude
because it requires medical practitioners to perform acts
against their will.262

The OSG counters that the rendition of pro bono services

envisioned in Section 17 can hardly be considered as
forced labor analogous to slavery, as reproductive health
care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover,
the OSG points out that the imposition is within the powers
of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a
right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine
is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in
order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but
a privileged burdened with conditions as it directly
involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades
which affect the public welfare, the public health, the
public morals, and the public safety; and to regulate or
control such professions or trades, even to the point of
revoking such right altogether.264
Moreover, as some petitioners put it, the notion of
involuntary servitude connotes the presence of force,
threats, intimidation or other similar means of coercion
and compulsion.265 A reading of the assailed provision,
however, reveals that it only encourages private and nongovernment reproductive healthcare service providers to
render pro bono service. Other than non-accreditation with
PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to
choose which kind of health service they wish to provide,
when, where and how to provide it or whether to provide it
all. Clearly, therefore, no compulsion, force or threat is
made upon them to render pro bono service against their
will. While the rendering of such service was made a
prerequisite to accreditation with PhilHealth, the Court
does not consider the same to be an unreasonable burden,
but rather, a necessary incentive imposed by Congress in
the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed,
however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their
religious beliefs and convictions do not allow them to
render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by
Congress to the FDA of the power to determine whether or
not a supply or product is to be included in the Essential
Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The
FDA does not only have the power but also the
competency to evaluate, register and cover health
services and methods. It is the only government entity
empowered to render such services and highly proficient
to do so. It should be understood that health services and
methods fall under the gamut of terms that are associated
with what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as

amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is
hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH).
Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers
and duties:
"(a) To administer the effective implementation of
this Act and of the rules and regulations issued
pursuant to the same;
"(b) To assume primary jurisdiction in the
collection of samples of health products;
"(c) To analyze and inspect health products in
connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis
for the preparation of health products standards,
and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with
technical requirements to serve as basis for the
issuance of appropriate authorization and spotcheck for compliance with regulations regarding
operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other
establishments and facilities of health products,
as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable
health products prior to the issuance of
appropriate authorizations to ensure safety,
efficacy, purity, and quality;
"(i) To require all manufacturers, traders,
distributors, importers, exporters, wholesalers,
retailers, consumers, and non-consumer users of
health products to report to the FDA any incident
that reasonably indicates that said product has
caused or contributed to the death, serious illness
or serious injury to a consumer, a patient, or any
person;
"(j) To issue cease and desist orders motu propio
or upon verified complaint for health products,
whether or not registered with the FDA Provided,
That for registered health products, the cease
and desist order is valid for thirty (30) days and
may be extended for sixty ( 60) days only after
due process has been observed;
"(k) After due process, to order the ban, recall,
and/or withdrawal of any health product found to
have caused death, serious illness or serious
injury to a consumer or patient, or is found to be
imminently injurious, unsafe, dangerous, or
grossly deceptive, and to require all concerned to
implement the risk management plan which is a
requirement for the issuance of the appropriate
authorization;

x x x.
As can be gleaned from the above, the functions, powers
and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's
premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was
equipped with the necessary powers and functions to
make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food
and medicines that are safe includes "service" and
"methods." From the declared policy of the RH Law, it is
clear that Congress intended that the public be given only
those medicines that are proven medically safe, legal,
non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards.
The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice, 267 as
follows:
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to
cope directly with the many problems demanding its
attention. The growth of society has ramified its activities
and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary.
To many of the problems attendant upon present day
undertakings, the legislature may not have the
competence, let alone the interest and the time, to
provide the required direct and efficacious, not to say
specific solutions.
10- Autonomy of Local Governments and the Autonomous
Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners
claim that the RH Law infringes upon the powers devolved
to local government units (LGUs) under Section 17 of the
Local Government Code. Said Section 17 vested upon the
LGUs the duties and functions pertaining to the delivery of
basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be
self-reliant and shall continue exercising the
powers and discharging the duties and functions
currently vested upon them. They shall also
discharge the functions and responsibilities of
national agencies and offices devolved to them
pursuant to this Code. Local government units
shall likewise exercise such other powers and
discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of
the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but
are not limited to, x x x.
While the aforementioned provision charges the
LGUs to take on the functions and responsibilities
that have already been devolved upon them from
the national agencies on the aspect of providing

for basic services and facilities in their respective

jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases
involving nationally-funded projects, facilities,
programs and services.268Thus:
(c) Notwithstanding the provisions of subsection
(b) hereof, public works and infrastructure
projects and other facilities, programs and
services funded by the National Government
under the annual General Appropriations Act,
other special laws, pertinent executive orders,
and those wholly or partially funded from foreign
sources, are not covered under this Section,
except in those cases where the local
government unit concerned is duly designated as
the implementing agency for such projects,
facilities, programs and services. [Emphases
supplied]
The essence of this express reservation of power by the
national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power
over a program for which funding has been provided by
the national government under the annual general
appropriations act, even if the program involves the
delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government
powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code
itself weighs against it.270
In this case, a reading of the RH Law clearly shows that
whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or
the training of barangay health workers,273 it will be the
national government that will provide for the funding of its
implementation. Local autonomy is not absolute. The
national government still has the say when it comes to
national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us
are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed
as making the availability of these services mandatory for
the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local
governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy
of local governments can be equally applied to the ARMM.
The RH Law does not infringe upon its autonomy.
Moreover, Article III, Sections 6, 10 and 11 of R.A. No.
9054, or the organic act of the ARMM, alluded to by
petitioner Tillah to justify the exemption of the operation
of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional
government. These provisions relied upon by the
petitioners simply delineate the powers that may be
exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of
its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy
granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of
imperium et imperio in the relationship between the

national and the regional governments.274 Except for the

express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its
inherent and plenary power to legislate on all subjects
which extends to all matters of general concern or
common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates
natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a
law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as
natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the
philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been transformed
into a written law, it cannot serve as a basis to strike down
a law. In Republic v. Sandiganbayan,278 the very case cited
by the petitioners, it was explained that the Court is not
duty-bound to examine every law or action and whether it
conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most
peculiar of circumstances involving rights inherent to man
where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not
sanction the taking away of life. It does not allow abortion
in any shape or form. It only seeks to enhance the
population control program of the government by
providing information and making non-abortifacient
contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services,
methods, devices, and supplies. As earlier pointed out,
however, the religious freedom of some sectors of society
cannot be trampled upon in pursuit of what the law hopes
to achieve. After all, the Constitutional safeguard to
religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church
and State, one religious group cannot be allowed to
impose its beliefs on the rest of the society. Philippine
modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and openminded so that peace and harmony may continue to reign
as we exist alongside each other.
As healthful as the intention of the RH Law may be, the
idea does not escape the Court that what it seeks to
address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause
of these perennial issues is not the large population but
the unequal distribution of wealth. Even if population

growth is controlled, poverty will remain as long as the

country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for
the country in the long run. The European and Asian
countries, which embarked on such a program generations
ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse
effects on their economy. These young workers represent
a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but
they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied
workers. What would happen if the country would be
weighed down by an ageing population and the fewer
younger generation would not be able to support them?
This would be the situation when our total fertility rate
would go down below the replacement level of two (2)
children per woman.280
Indeed, at the present, the country has a population
problem, but the State should not use coercive measures
(like the penal provisions of the RH Law against
conscientious objectors) to solve it. Nonetheless, the
policy of the Court is non-interference in the wisdom of a
law.
x x x. But this Court cannot go beyond what the legislature
has laid down. Its duty is to say what the law is as enacted
by the lawmaking body. That is not the same as saying
what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the
judiciary to look into the wisdom of the law nor to question
the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is
for the legislature to enact remedial legislation if that
would be necessary in the premises. But as always, with
apt judicial caution and cold neutrality, the Court must
carry out the delicate function of interpreting the law,
guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is
therefore limited, and accordingly, must confine itself to
the judicial task of saying what the law is, as enacted by
the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a
mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with
coercive measures. Even if the Court decrees the RH Law
as entirely unconstitutional, there will still be the
Population Act (R.A. No. 6365), the Contraceptive Act (R.A.
No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the
principle of "no-abortion" and "non-coercion" in the
adoption of any family planning method should be
maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED.
Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following
provisions which are declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in

the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty
hospitals and hospitals owned and operated by a
religious group to refer patients, not in an
emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b)
allow minor-parents or minors who have suffered
a miscarriage access to modem methods of
family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding
provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare
service provider who fails and or refuses to
disseminate information regarding programs and
services on reproductive health regardless of his
or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding
provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or lifethreatening case, as defined under Republic Act
No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding
provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective
surgical procedures.
5) Section 23(a)(3) and the corresponding
provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer
a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to
another health care service provider within the
same facility or one which is conveniently
accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding provision
in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who
refuses to support reproductive health programs
or shall do any act that hinders the full
implementation of a reproductive health program,
regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in
the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they
affect the conscientious objector in securing
PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RHIRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as
they are ultra vires and, therefore, null and void
for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March
19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354
which have been herein declared as constitutional.

THE PROVINCE OF NORTH COTABATO, ET AL. v. THE

GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(GRP), ET AL.
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons
of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat
Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground,
among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from
signing the same.
The MOA-AD was preceded by a long process of
negotiation and the concluding of several prior
agreements between the two parties beginning in 1996,
when the GRP-MILF peace negotiations began. On July 18,
1997, the GRP and MILF Peace Panels signed the
Agreement on General Cessation of Hostilities. The
following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same
contained, among others, the commitment of the parties
to pursue peace negotiations, protect and respect human
rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of
threat or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going.2

Central Committee to seriously discuss the matter and,

eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with
the talks being facilitated by the Malaysian government,
the parties signing on the same date the Agreement on
the General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter
suspended all its military actions.5
Formal peace talks between the parties were held in
Tripoli, Libya from June 20-22, 2001, the outcome of which
was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and
agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect,
and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement
2001 simply agreed "that the same be discussed further
by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya,
Malaysia on August 5-7, 2001 which ended with the
signing of the Implementing Guidelines on the Security
Aspect of the Tripoli Agreement 2001 leading to a
ceasefire status between the parties. This was followed by
the Implementing Guidelines on the Humanitarian
Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at
Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the
MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj
Murad, who was then the chief peace negotiator of the
MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting
of the draft MOA-AD in its final form, which, as mentioned,
was set to be signed last August 5, 2008.
III. OVERVIEW OF THE MOA-AD

Early on, however, it was evident that there was not going
to be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao
and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President
Joseph Estrada declared and carried out an "all-out-war"
against the MILF.

As a necessary backdrop to the consideration of the

objections raised in the subject five petitions and six
petitions-in-intervention against the MOA-AD, as well as
the two comments-in-intervention in favor of the MOA-AD,
the Court takes an overview of the MOA.

When President Gloria Macapagal-Arroyo assumed office,

the military offensive against the MILF was suspended and
the government sought a resumption of the peace talks.
The MILF, according to a leading MILF member, initially
responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime
Minister Mahathir Mohammad to help convince the MILF to
return to the negotiating table, the MILF convened its

Under the heading "Terms of Reference" (TOR), the MOAAD includes not only four earlier agreements between the
GRP and MILF, but also two agreements between the GRP
and the MNLF: the 1976 Tripoli Agreement, and the Final
Peace Agreement on the Implementation of the 1976

The MOA-AD identifies the Parties to it as the GRP and the

MILF.

Tripoli Agreement, signed on September 2, 1996 during

the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the
organic act for the Autonomous Region in Muslim
Mindanao (ARMM)25 and the Indigenous Peoples Rights Act
(IPRA),26 and several international law instruments - the
ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries in relation to the UN
Declaration on the Rights of the Indigenous Peoples, and
the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category
of "compact rights entrenchment emanating from the
regime of dar-ul-mua'hada (or territory under compact)
and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim
jurists tended to see the world through a simple
dichotomy: there was the dar-ul-Islam (the Abode of Islam)
and dar-ul-harb (the Abode of War). The first referred to
those lands where Islamic laws held sway, while the
second denoted those lands where Muslims were
persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the
Islamic world became part of the international community
of nations.
As Muslim States entered into treaties with their
neighbors, even with distant States and intergovernmental organizations, the classical division of the
world into dar-ul-Islam and dar-ul-harb eventually lost its
meaning. New terms were drawn up to describe novel
ways of perceiving non-Muslim territories. For instance,
areas like dar-ul-mua'hada (land of compact) and dar-ulsulh (land of treaty) referred to countries which, though
under a secular regime, maintained peaceful and
cooperative relations with Muslim States, having been
bound to each other by treaty or agreement. Dar-ulaman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment"
emanating from the regime of dar-ul-mua'hada and dar-ulsulh simply refers to all other agreements between the
MILF and the Philippine government - the Philippines being
the land of compact and peace agreement - that partake
of the nature of a treaty device, "treaty" being broadly
defined as "any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the
principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main
body.

The main body of the MOA-AD is divided into four

strands, namely, Concepts and Principles, Territory,
Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the
birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
Bangsamoros.'" It defines "Bangsamoro people" as
the natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and
their descendants whether mixed or of full blood, including
their spouses.30
Thus, the concept of "Bangsamoro," as defined in this
strand of the MOA-AD, includes not only "Moros" as
traditionally understood even by Muslims,31 but
all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom
of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro
homeland," the ownership of which is vested exclusively
in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public
domain.33
The Bangsamoro people are acknowledged as having
the right to self-governance, which right is said to be
rooted on ancestral territoriality exercised originally under
the suzerain authority of their sultanates and the Pat a
Pangampong ku Ranaw. The sultanates were described as
states or "karajaan/kadatuan" resembling a body politic
endowed with all the elements of a nation-state in the
modern sense.34
The MOA-AD thus grounds the right to self-governance of
the Bangsamoro people on the past suzerain authority of
the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates
and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and
sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people
as "the First Nation' with defined territory and with a
system of government having entered into treaties of
amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to
the indigenous peoples of that territory, particularly those
known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called "First Nation,"
hence, all of them are usually described collectively by the
plural "First Nations."36 To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" -

suggesting its exclusive entitlement to that designation departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it
grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as
the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the MindanaoSulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the
present geographic area of the ARMM - thus constituting
the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core
also includes certain municipalities of Lanao del Norte that
voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces,
cities, municipalities and barangays, which are grouped
into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on
different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not
later than twelve (12) months following the signing of the
MOA-AD.40 Category B areas, also called "Special
Intervention Areas," on the other hand, are to be subjected
to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its
"internal waters," defined as extending fifteen (15)
kilometers from the coastline of the BJE area; 42 that the
BJE shall also have "territorial waters," which shall stretch
beyond the BJE internal waters up to the baselines of the
Republic of the Philippines (RP) south east and south west
of mainland Mindanao; and that within
these territorialwaters, the BJE and the "Central
Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management
over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals
on the territorial waters between the Central Government
and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.44 The
activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are
the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the
enforcement of police and safety measures.45 There is no
similar provision on the sharing of minerals and allowed
activities with respect to the internal waters of the BJE.
C. RESOURCES

The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries and shall have the option to establish trade
missions in those countries. Such relationships and
understandings, however, are not to include aggression
against the GRP. The BJE may also enter into
environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central
Government is also bound to "take necessary steps to
ensure the BJE's participation in international meetings
and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate
in Philippine official missions and delegations for the
negotiation of border agreements or protocols for
environmental protection and equitable sharing of
incomes and revenues involving the bodies of water
adjacent to or between the islands forming part of the
ancestral domain.47
With regard to the right of exploring for, producing, and
obtaining all potential sources of energy, petroleum, fossil
fuel, mineral oil and natural gas, the jurisdiction and
control thereon is to be vested in the BJE "as the party
having control within its territorial jurisdiction." This right
carries the proviso that, "in times of national emergency,
when public interest so requires," the Central Government
may, for a fixed period and under reasonable terms as
may be agreed upon by both Parties, assume or direct the
operation of such resources.48
The sharing between the Central Government and the BJE
of total production pertaining to natural resources is to be
75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession
of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is
to be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions,
timber licenses, contracts or agreements, mining
concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA),
and other land tenure instruments granted by the
Philippine Government, including those issued by the
present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational
third-party to observe and monitor the implementation of
the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and
"the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly
provides that the participation of the third party shall not
in any way affect the status of the relationship between
the Central Government and the BJE.52

The "associative" relationship

between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central
Government and the BJE as "associative," characterizedby
shared authority and responsibility. And it states that the
structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with
defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring
"amendments to the existing legal framework" shall take
effect upon signing of the Comprehensive Compact and
upon effecting the aforesaid amendments, with due regard
to the non-derogation of prior agreements and within
the stipulated timeframe to be contained in the
Comprehensive Compact. As will be discussed later,
much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and
maintain its own institutions inclusive of civil service,
electoral, financial and banking, education, legislation,
legal, economic, police and internal security force, judicial
system and correctional institutions, the details of which
shall be discussed in the negotiation of the comprehensive
compact.
As stated early on, the MOA-AD was set to be signed on
August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the
representatives of the Parties," meaning the GRP and MILF
themselves, and not merely of the negotiating panels.53 In
addition, the signature page of the MOA-AD states that it is
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the
Islamic Conference (OIC) Secretary General and Special
Envoy for Peace Process in Southern Philippines, and
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr.
Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of
whom were scheduled to sign the Agreement last August
5, 2008.
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities,
and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
Petitioners invoke their constitutional right to
information on matters of public concern, as provided
in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized.
Access to official records, and to documents, and
papers pertaining to official acts, transactions, or
decisions, as well as to government research data

used as basis for policy development, shall be

afforded the citizen, subject to such limitations as
may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has
recognized the statutory right to examine and inspect
public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in
both the 1973 Constitution and the 1987 Constitution, has
been recognized as a self-executory constitutional right. 109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the
Court ruled that access to public records is predicated on
the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the
pubic has a legitimate interest in matters of social and
political significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably
ceases." x x x111
In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in
democratic decision-making by giving them a better
perspective of the vital issues confronting the nation 112 so
that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and
effective manner. It is by ensuring an unfettered and
uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the
changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present
cases is a matter of public concern114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions
entered in the Register of Deeds,116 the need for adequate
notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management
of GSIS funds allegedly used to grant loans to public
officials,119 the recovery of the Marcoses' alleged ill-gotten
wealth,120 and the identity of party-list nominees,121 among
others, are matters of public concern. Undoubtedly, the
MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects
the lives of the public at large.
Matters of public concern covered by the right to
information include steps and negotiations leading to the
consummation of the contract. In not distinguishing as to
the executory nature or commercial character of
agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates

inclusion of negotiations leading to the
consummation of the transaction." Certainly,
a consummated contract is not a requirement for
the exercise of the right to information.
Otherwise, the people can never exercise the
right if no contract is consummated, and if one is
consummated, it may be too late for the public to
expose its defects.
Requiring a consummated contract will keep the
public in the dark until the contract, which may
be grossly disadvantageous to the government or
even illegal, becomes fait accompli. This negates
the State policy of full transparency on matters of
public concern, a situation which the framers of
the Constitution could not have intended. Such a
requirement will prevent the citizenry from
participating in the public discussion of
any proposed contract, effectively truncating a
basic right enshrined in the Bill of Rights. We can
allow neither an emasculation of a constitutional
right, nor a retreat by the State of its avowed
"policy of full disclosure of all its transactions
involving public interest."122 (Emphasis and italics
in the original)
Intended as a "splendid symmetry"123 to the right to
information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.124
The policy of full public disclosure enunciated in abovequoted Section 28 complements the right of access to
information on matters of public concern found in the Bill
of Rights. The right to information guarantees the right of
the people to demand information, while Section 28
recognizes the duty of officialdom to give information even
if nobody demands.125
The policy of public disclosure establishes a concrete
ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people's right to
know as the centerpiece. It is a mandate of the State to be
accountable by following such policy.126 These provisions
are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to
the people.127
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory,
this policy will not be enunciated or will not be in
force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of
public ethics immediately but, of course, the
implementing law will have to be enacted by
Congress, Mr. Presiding Officer.128

The following discourse, after Commissioner Hilario

Davide, Jr., sought clarification on the issue, is
enlightening.
MR. DAVIDE. I would like to get some clarifications
on this. Mr. Presiding Officer, did I get the
Gentleman correctly as having said that this is
not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be selfexecuting, but I accepted an amendment from
Commissioner Regalado, so that the safeguards
on national interest are modified by the clause
"as may be provided by law"
MR. DAVIDE. But as worded, does it not mean
that this will immediately take effect and
Congress may provide for reasonable
safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding
Officer, I said earlier that it should
immediately influence the climate of the
conduct of public affairs but, of course,
Congress here may no longer pass a law revoking
it, or if this is approved, revoking this principle,
which is inconsistent with this policy.129 (Emphasis
supplied)
Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute.
As Congress cannot revoke this principle, it is merely
directed to provide for "reasonable safeguards." The
complete and effective exercise of the right to information
necessitates that its complementary provision on public
disclosure derive the same self-executory nature. Since
both provisions go hand-in-hand, it is absurd to say that
the broader130 right to information on matters of public
concern is already enforceable while the correlative duty
of the State to disclose its transactions involving public
interest is not enforceable until there is an enabling
law.Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting
such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between
the government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive
and be responsive to the people's will.131Envisioned to
be corollary to the twin rights to information and
disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to
participate? Will the government provide
feedback mechanisms so that the people
can participate and can react where the
existing media facilities are not able to
provide full feedback mechanisms to the
government? I suppose this will be part of
the government implementing operational
mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses

take place. There is a message and a feedback,

both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I
just make one last sentence?
I think when we talk about the feedback
network, we are not talking about public
officials but also network of private
business o[r] community-based
organizations that will be reacting. As a
matter of fact, we will put more credence or
credibility on the private network of volunteers
and voluntary community-based organizations.
So I do not think we are afraid that there will be
another OMA in the making.132(Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding
the peace agenda and process is manifestly provided by
E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the
contribution of civil society to the comprehensive peace
process by institutionalizing the people's participation.
One of the three underlying principles of the
comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined
not by the government alone, nor by the different
contending groups only, but by all Filipinos as one
community."134Included as a component of the
comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing
consultations on both national and local levels to build
consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the
peace process."135
Clearly, E.O. No. 3 contemplates not just the
conduct of a plebiscite to effectuate "continuing"
consultations, contrary to respondents' position
that plebiscite is "more than sufficient
consultation."136
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to
"[c]onductregular dialogues with the National Peace Forum
(NPF) and other peace partners to seek relevant
information, comments, recommendations as well as to
render appropriate and timely reports on the progress of
the comprehensive peace process." 137 E.O. No. 3 mandates
the establishment of the NPF to be "the principal forumfor
the PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of
society on both national and local levels, on the
implementation of the comprehensive peace process, as
well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to
be consulted on the peace agenda, as a corollary to
the constitutional right to information and
disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when
he failed to carry out the pertinent consultation. The
furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may,
however, require him to comply with the law and
discharge the functions within the authority granted by the
President.139
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not
much different from superficial conduct toward token
provisos that border on classic lip service. 140 It illustrates a
gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
As for respondents' invocation of the doctrine of executive
privilege, it is not tenable under the premises. The
argument defies sound reason when contrasted with E.O.
No. 3's explicit provisions on continuing consultation and
dialogue on both national and local levels. The executive
order even recognizes the exercise of the public's
right even before the GRP makes its official
recommendations or before the government proffers its
definite propositions.141 It bear emphasis that E.O. No. 3
seeks to elicit relevant advice, information, comments and
recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the
defense of executive privilege in view of their unqualified
disclosure of the official copies of the final draft of the
MOA-AD. By unconditionally complying with the Court's
August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a
manifestation that it was complying therewith ex
abundante ad cautelam.
Petitioners' assertion that the Local Government Code
(LGC) of 1991 declares it a State policy to "require all
national agencies and offices to conduct periodic
consultations with appropriate local government units,
non-governmental and people's organizations, and other
concerned sectors of the community before any project or
program is implemented in their respective
jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed
policy:
Prior Consultations Required. - No project or
program shall be implemented by government
authoritiesunless the consultations mentioned in
Sections 2 (c) and 26 hereof are complied with,
and prior approval of the sanggunian concerned
is obtained: Provided, That occupants in areas
where such projects are to be implemented shall
not be evicted unless appropriate relocation sites
have been provided, in accordance with the
provisions of the Constitution.143 (Italics and
underscoring supplied)

In Lina, Jr. v. Hon. Pao,144 the Court held that the abovestated policy and above-quoted provision of the LGU apply
only to national programs or projects which are to be
implemented in a particular local community. Among the
programs and projects covered are those that are critical
to the environment and human ecology including those
that may call for the eviction of a particular group of
people residing in the locality where these will be
implemented.145 The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership
of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically
result to the diaspora or displacement of a great
number of inhabitants from their total environment.
With respect to the indigenous cultural
communities/indigenous peoples (ICCs/IPs), whose
interests are represented herein by petitioner Lopez and
are adversely affected by the MOA-AD, the ICCs/IPs have,
under the IPRA, the right to participate fully at all levels of
decision-making in matters which may affect their rights,
lives and destinies.147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its noncompliance with the clear-cut mechanisms ordained in
said Act,148 which entails, among other things, the
observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive
Department or any government agency the power to
delineate and recognize an ancestral domain claim by
mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points"
necessarily must fail. In proceeding to make a sweeping
declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOAAD, respondents clearly transcended the boundaries
of their authority. As it seems, even the heart of the
MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends
the effectivity of all provisions requiring changes to the
legal framework, such clause is itself invalid, as will be
discussed in the following section.
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available
always to public cognizance. This has to be so if the
country is to remain democratic, with sovereignty residing
in the people and all government authority emanating
from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be
no question that they cannot all be accommodated under
the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court,
and the MOA-AD itself recognizes the need to amend the
existing legal framework to render effective at least some
of its provisions. Respondents, nonetheless, counter that
the MOA-AD is free of any legal infirmity because any
provisions therein which are inconsistent with the present
legal framework will not be effective until the necessary
changes to that framework are made. The validity of this
argument will be considered later. For now, the Court shall
pass upon how
The MOA-AD is inconsistent with the Constitution
and laws as presently worded.

In general, the objections against the MOA-AD center on

the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under
present laws, and even go beyond those of the present
ARMM. Before assessing some of the specific powers that
would have been vested in the BJE, however, it would be
useful to turn first to a general idea that serves as a
unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions
with it in mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE and the
Central Government.
4. The relationship between the Central
Government and the Bangsamoro juridical
entity shall beassociative characterized by
shared authority and responsibility with a
structure of governance based on executive,
legislative, judicial and administrative institutions
with defined powers and functions in the
comprehensive compact. A period of transition
shall be established in a comprehensive peace
compact specifying the relationship between the
Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have
been intended to be defined more precisely in the still to
be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international
law, and the MOA-AD - by its inclusion of international law
instruments in its TOR- placed itself in an international
legal context, that concept of association may be brought
to bear in understanding the use of the term "associative"
in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of
unequal power voluntarily establish durable links.
In the basic model, one state, the associate,
delegates certain responsibilities to the
other, the principal, while maintaining its
international status as a state. Free
associations represent a middle ground
between integration and independence. x x
x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S.
pursuant to a Compact of Free Association. The currency in
these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the
UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the
Marshall Islands and the FSM generally have the capacity

to conduct foreign affairs in their own name and right,

such capacity extending to matters such as the law of the
sea, marine resources, trade, banking, postal, civil
aviation, and cultural relations. The U.S. government,
when conducting its foreign affairs, is obligated to consult
with the governments of the Marshall Islands or the FSM
on matters which it (U.S. government) regards as relating
to or affecting either government.
In the event of attacks or threats against the Marshall
Islands or the FSM, the U.S. government has the authority
and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option
of establishing and using military areas and facilities
within these associated states and has the right to bar the
military personnel of any third country from having access
to these territories for military purposes.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the
associated nation's national constitution, and each party
may terminate the association consistent with the right of
independence. It has been said that, with the admission of
the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is
actually based on an underlying status of independence. 152
In international practice, the "associated state"
arrangement has usually been used as a transitional
device of former colonies on their way to full
independence. Examples of states that have passed
through the status of associated states as a transitional
phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become
independent states.153
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept
ofassociation, specifically the following: the BJE's capacity
to enter into economic and trade relations with foreign
countries, the commitment of the Central Government to
ensure the BJE's participation in meetings and events in
the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to
participate in Philippine official missions bearing on
negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the
bodies of water adjacent to or between the islands forming
part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be
consulted by the U.S. government on any foreign affairs
matter affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of
an associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under
the present Constitution
No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an "associative"
relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of

the associated entity as a state. The Constitution,

however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does
it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's
provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political
subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and
barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras
as hereinafter provided.
SECTION 15. There shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and
geographical areas sharing common and
distinctive historical and cultural heritage,
economic and social structures, and other
relevant characteristics within the framework
of this Constitution and the national
sovereignty as well as territorial integrity of
the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the
status of its relationship with the national government
being fundamentally different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets the
criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population,
a defined territory, a government, and a capacity to enter
into relations with other states.
Even assuming arguendo that the MOA-AD would not
necessarily sever any portion of Philippine territory, the
spirit animating it - which has betrayed itself by its use
of the concept of association - runs counter to the
national sovereignty and territorial integrity of the
Republic.
The defining concept underlying the relationship
between the national government and the BJE being
itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE
are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that
"[t]he creation of the autonomous region shall be effective
when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic
areas voting favorably in such plebiscite shall be
included in the autonomous region." (Emphasis
supplied)
As reflected above, the BJE is more of a state than an
autonomous region. But even assuming that it is covered
by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict

with it. Under paragraph 2(c) on TERRITORY in relation to

2(d) and 2(e), the present geographic area of the ARMM
and, in addition, the municipalities of Lanao del Norte
which voted for inclusion in the ARMM during the 2001
plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and
Tangkal - are automatically part of the BJE without need of
another plebiscite, in contrast to the areas under
Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the abovementioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the
ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous
regions as follows:
SECTION 20. Within its territorial jurisdiction
and subject to the provisions of this Constitution
and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning
development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by
law for the promotion of the general welfare of
the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would
not suffice, since any new law that might vest in the BJE
the powers found in the MOA-AD must, itself, comply with
other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with
treaty-making power in order to accommodate paragraph
4 of the strand on RESOURCES which states: "The BJE is
free to enter into any economic cooperation and trade
relations with foreign countries: provided, however, that
such relationships and understandings do not include
aggression against the Government of the Republic of the
Philippines x x x." Under our constitutional system, it is
only the President who has that power. Pimentel v.
Executive Secretary155 instructs:

In our system of government, the President,

being the head of state, is regarded as the sole
organ and authority in external relations
and is the country's sole representative
with foreign nations. As the chief architect of
foreign policy, the President acts as the country's
mouthpiece with respect to international affairs.
Hence, the President is vested with the
authority to deal with foreign states and
governments, extend or withhold
recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact
the business of foreign relations. In the
realm of treaty-making, the President has
the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also
be amended if the scheme envisioned in the MOAAD is to be effected. That constitutional provision
states: "The State recognizes and promotes the rights
ofindigenous cultural communities within the framework
of national unity and development." (Underscoring
supplied) An associative arrangement does not uphold
national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the
national government, the act of placing a portion of
Philippine territory in a status which, in international
practice, has generally been a preparation for
independence, is certainly not conducive
to national unity.
Besides being irreconcilable with the Constitution, the
MOA-AD is also inconsistent with prevailing statutory
law, among which are R.A. No. 9054156 or the Organic
Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM
is a bar to the adoption of the definition of
"Bangsamoro people" used in the MOA-AD. Paragraph 1
on Concepts and Principles states:
1. It is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify
themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers
to those who are natives or original
inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu
archipelago at the time of conquest or
colonization of its descendants whether mixed or
of full blood. Spouses and their descendants are
classified as Bangsamoro. The freedom of choice
of the Indigenous people shall be respected.
(Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with
that found in the Article X, Section 3 of the Organic Act,
which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro
people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase
"indigenous cultural community" refers
to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose
social, cultural and economic conditions

distinguish them from other sectors of the

national community; and
(b) Bangsa Moro people. These are citizens
who are believers in Islam and who have
retained some or all of their own social,
economic, cultural, and political
institutions."
Respecting the IPRA, it lays down the prevailing procedure
for the delineation and recognition of ancestral domains.
The MOA-AD's manner of delineating the ancestral domain
of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of Territory, the Parties simply
agree that, subject to the delimitations in the agreed
Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following
provisions thereof:
SECTION 52. Delineation Process. - The
identification and delineation of ancestral
domains shall be done in accordance with the
following procedures:
xxxx
b) Petition for Delineation. - The process of
delineating a specific perimeter may be initiated
by the NCIP with the consent of the ICC/IP
concerned, or through a Petition for Delineation
filed with the NCIP, by a majority of the members
of the ICCs/IPs;
c) Delineation Proper. - The official delineation of
ancestral domain boundaries including census of
all community members therein, shall be
immediately undertaken by the Ancestral
Domains Office upon filing of the application by
the ICCs/IPs concerned. Delineation will be done
in coordination with the community concerned
and shall at all times include genuine
involvement and participation by the members of
the communities concerned;
d) Proof Required. - Proof of Ancestral Domain
Claims shall include the testimony of elders or
community under oath, and other documents
directly or indirectly attesting to the possession
or occupation of the area since time immemorial
by such ICCs/IPs in the concept of owners which
shall be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs
customs and traditions;
2) Written accounts of the ICCs/IPs
political structure and institution;

3) Pictures showing long term

occupation such as those of old
improvements, burial grounds, sacred
places and old villages;
4) Historical accounts, including pacts
and agreements concerning boundaries
entered into by the ICCs/IPs concerned
with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of
traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of
traditional landmarks such as
mountains, rivers, creeks, ridges, hills,
terraces and the like; and
10) Write-ups of names and places
derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such
investigation and the findings of fact based
thereon, the Ancestral Domains Office of the NCIP
shall prepare a perimeter map, complete with
technical descriptions, and a description of the
natural features and landmarks embraced
therein;
f) Report of Investigation and Other Documents. A complete copy of the preliminary census and a
report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each
document, including a translation in the native
language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least
fifteen (15) days. A copy of the document shall
also be posted at the local, provincial and
regional offices of the NCIP, and shall be
published in a newspaper of general circulation
once a week for two (2) consecutive weeks to
allow other claimants to file opposition thereto
within fifteen (15) days from date of such
publication: Provided, That in areas where no
such newspaper exists, broadcasting in a radio
station will be a valid substitute: Provided,
further, That mere posting shall be deemed
sufficient if both newspaper and radio station are
not available;
h) Endorsement to NCIP. - Within fifteen (15) days
from publication, and of the inspection process,
the Ancestral Domains Office shall prepare a
report to the NCIP endorsing a favorable action
upon a claim that is deemed to have sufficient
proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall
require the submission of additional evidence:

Provided, That the Ancestral Domains Office shall

reject any claim that is deemed patently false or
fraudulent after inspection and verification:
Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned,
containing the grounds for denial. The denial shall
be appealable to the NCIP: Provided, furthermore,
That in cases where there are conflicting claims
among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall
cause the contending parties to meet and assist
them in coming up with a preliminary resolution
of the conflict, without prejudice to its full
adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the
MOA-AD with the present legal system, a discussion of not
only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that
the Philippines "adopts the generally accepted
principles of international law as part of the law of
the land."
Applying this provision of the Constitution, the Court,
in Mejoff v. Director of Prisons,158 held that the Universal
Declaration of Human Rights is part of the law of the land
on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order
had not been executed even after two years. Similarly, the
Court in Agustin v. Edu159 applied the aforesaid
constitutional provision to the 1968 Vienna Convention on
Road Signs and Signals.
International law has long recognized the right to selfdetermination of "peoples," understood not merely as the
entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE SECESSION OF
QUEBEC160 had occasion to acknowledge that "the right of
a people to self-determination is now so widely recognized
in international conventions that the principle has acquired
a status beyond convention' and is considered a general
principle of international law."
Among the conventions referred to are the International
Covenant on Civil and Political Rights161 and the
International Covenant on Economic, Social and Cultural
Rights162 which state, in Article 1 of both covenants, that
all peoples, by virtue of the right of self-determination,
"freely determine their political status and freely pursue
their economic, social, and cultural development."
The people's right to self-determination should not,
however, be understood as extending to a unilateral right
of secession. A distinction should be made between the
right of internal and external self-determination.
REFERENCE RE SECESSION OF QUEBEC is again
instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law
establish that the right to self-determination

of a people is normally fulfilled

through internal self-determination - a
people's pursuit of its political, economic,
social and cultural development within the
framework of an existing state. A right
toexternal self-determination (which in this
case potentially takes the form of the
assertion of a right to unilateral secession)
arises in only the most extreme of cases
and, even then, under carefully defined
circumstances. x x x
External self-determination can be defined
as in the following statement from
the Declaration on Friendly Relations,
supra, as
The establishment of a sovereign and
independent State, the free association or
integration with an independent State or
the emergence into any other political
status freely determined by
apeople constitute modes of implementing the
right of self-determination by that people.
(Emphasis added)
127. The international law principle of selfdetermination has evolved within a
framework of respect for the territorial
integrity of existing states. The various
international documents that support the
existence of a people's right to self-determination
also contain parallel statements supportive of the
conclusion that the exercise of such a right must
be sufficiently limited to prevent threats to an
existing state's territorial integrity or the stability
of relations between sovereign states.
x x x x (Emphasis, italics and underscoring
supplied)
The Canadian Court went on to discuss the exceptional
cases in which the right to external self-determination can
arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a
colonial context, and - less definitely but asserted by a
number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The
Court ultimately held that the population of Quebec had
no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the
freedom to make political choices and pursue economic,
social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent
positions therein.
The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented
to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago
should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should,
based on international law, be entirely left to the domestic

jurisdiction of Finland. The Committee stated the rule as

follows:
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of
national territory is essentially an attribute
of the sovereignty of every State. Positive
International Law does not recognize the
right of national groups, as such, to
separate themselves from the State of
which they form part by the simple
expression of a wish, any more than it
recognizes the right of other States to claim such
a separation. Generally speaking, the grant
or refusal of the right to a portion of its
population of determining its own political
fate by plebiscite or by some other method,
is, exclusively, an attribute of the
sovereignty of every State which is
definitively constituted. A dispute between
two States concerning such a question, under
normal conditions therefore, bears upon a
question which International Law leaves entirely
to the domestic jurisdiction of one of the States
concerned. Any other solution would amount to
an infringement of sovereign rights of a State and
would involve the risk of creating difficulties and
a lack of stability which would not only be
contrary to the very idea embodied in term
"State," but would also endanger the interests of
the international community. If this right is not
possessed by a large or small section of a nation,
neither can it be held by the State to which the
national group wishes to be attached, nor by any
other State. (Emphasis and underscoring
supplied)
The Committee held that the dispute concerning the
Aaland Islands did not refer to a question which is left by
international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the
general rule, however, was a very narrow one, namely, the
Aaland Islands agitation originated at a time when Finland
was undergoing drastic political transformation. The
internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the
conditions required for the formation of a sovereign State
did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government
was disputed by a large section of the people, and it had,
in fact, been chased from the capital and forcibly
prevented from carrying out its duties. The armed camps
and the police were divided into two opposing forces. In
light of these circumstances, Finland was not, during the
relevant time period, a "definitively constituted" sovereign
state. The Committee, therefore, found that Finland did not
possess the right to withhold from a portion of its
population the option to separate itself - a right which
sovereign nations generally have with respect to their own
populations.
Turning now to the more specific category
of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures,
histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger
governing society. These groups are regarded as
"indigenous" since they are the living descendants of preinvasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or

communities are culturally distinctive groups that find

themselves engulfed by settler societies born of the forces
of empire and conquest.164 Examples of groups who have
been regarded as indigenous peoples are the Maori of New
Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous
peoples situated within states do not have a general right
to independence or secession from those states under
international law,165 but they do have rights amounting to
what was discussed above as the right to internal selfdetermination.
In a historic development last September 13, 2007, the UN
General Assembly adopted the United Nations Declaration
on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The
vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia,
Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to
self-determination, encompassing the right to
autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to selfdetermination. By virtue of that right they freely
determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to
self-determination, have the right
to autonomy or self-government in matters
relating to their internal and local affairs, as
well as ways and means for financing their
autonomous functions.
Article 5
Indigenous peoples have the right to maintain
and strengthen their distinct political, legal,
economic, social and cultural institutions, while
retaining their right to participate fully, if they so
choose, in the political, economic, social and
cultural life of the State.
Self-government, as used in international legal discourse
pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination."166 The extent of
self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of
which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the
right not to be subjected to forced assimilation or
destruction of their culture.
2. States shall provide effective mechanisms
for prevention of, and redress for:
(a) Any action which has the aim or effect of
depriving them of their integrity as distinct

peoples, or of their cultural values or ethnic

identities;
(b) Any action which has the aim or effect of
dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer
which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to
promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their
economic and social conditions, including, inter
alia, in the areas of education, employment,
vocational training and retraining, housing,
sanitation, health and social security.
2. States shall take effective measures and,
where appropriate, special measures to ensure
continuing improvement of their economic and
social conditions. Particular attention shall be
paid to the rights and special needs of indigenous
elders, women, youth, children and persons with
disabilities.
Article 26
1. Indigenous peoples have the right to the
lands, territories and resources which they
have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and
resources that they possess by reason of
traditional ownership or other traditional
occupation or use, as well as those which they
have otherwise acquired.
3. States shall give legal recognition and
protection to these lands, territories and
resources. Such recognition shall be conducted
with due respect to the customs, traditions and
land tenure systems of the indigenous peoples
concerned.
Article 30
1. Military activities shall not take place in the
lands or territories of indigenous peoples, unless
justified by a relevant public interest or otherwise
freely agreed with or requested by the indigenous
peoples concerned.

2. States shall undertake effective consultations

with the indigenous peoples concerned, through
appropriate procedures and in particular through
their representative institutions, prior to using
their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine
and develop priorities and strategies for the
development or use of their lands or territories
and other resources.
2. States shall consult and cooperate in good
faith with the indigenous peoples concerned
through their own representative institutions in
order to obtain their free and informed consent
prior to the approval of any project affecting their
lands or territories and other resources,
particularly in connection with the development,
utilization or exploitation of mineral, water or
other resources.
3. States shall provide effective mechanisms for
just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural
or spiritual impact.
Article 37
1. Indigenous peoples have the right to the
recognition, observance and enforcement of
treaties, agreements and other constructive
arrangements concluded with States or their
successors and to have States honour and
respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted
as diminishing or eliminating the rights of
indigenous peoples contained in treaties,
agreements and other constructive
arrangements.
Article 38
States in consultation and cooperation with
indigenous peoples, shall take the appropriate
measures, including legislative measures, to
achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration
on Human Rights, must now be regarded as embodying
customary international law - a question which the Court
need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality
of the BJE, the particular rights and powers provided for in
the MOA-AD. Even the more specific provisions of the UN
DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that
States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes
that it is the State which will provide protection for
indigenous peoples against acts like the forced

dispossession of their lands - a function that is normally

performed by police officers. If the protection of a right so
essential to indigenous people's identity is acknowledged
to be the responsibility of the State, then surely the
protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in
the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States
to grant indigenous peoples the near-independent status
of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may
be interpreted as implying for any State, people,
group or person any right to engage in any
activity or to perform any act contrary to the
Charter of the United Nations orconstrued as
authorizing or encouraging any action
which would dismember or impair, totally or
in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of
the land pursuant to Article II, Section 2 of the
Constitution, it would not suffice to uphold the validity of
the MOA-AD so as to render its compliance with other laws
unnecessary.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled with
the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the
MOA-AD alone would not have entailed any violation of law
or grave abuse of discretion on their part, precisely
because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these
laws are amended. They cite paragraph 7 of the MOA-AD
strand on GOVERNANCE quoted earlier, but which is
reproduced below for convenience:
7. The Parties agree that the mechanisms and
modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it
to occur effectively.
Any provisions of the MOA-AD requiring
amendments to the existing legal framework
shall come into force upon signing of a
Comprehensive Compact and upon effecting the
necessary changes to the legal framework with
due regard to non derogation of prior agreements
and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are
effected. While the word "Constitution" is not
mentioned in the provision now under consideration
or anywhere else in the MOA-AD, the term "legal
framework" is certainly broad enough to include the
Constitution.

Notwithstanding the suspensive clause, however,

respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government,
have already violated the Memorandum of Instructions
From The President dated March 1, 2001, which states that
the "negotiations shall be conducted in accordance with x
x x the principles of the sovereignty and territorial
integrityof the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between
the BJE and the Central Government is, for the reasons
already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent
status already prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section
5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations
with different rebel groups to be "appointed by the
President as her official emissaries to conduct
negotiations, dialogues, and face-to-face discussions with
rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and
progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring
lasting solutions to the Moro Problem through its
negotiations with the MILF, was not restricted by E.O. No. 3
only to those options available under the laws as they
presently stand. One of the components of a
comprehensive peace process, which E.O. No. 3
collectively refers to as the "Paths to Peace," is the pursuit
of social, economic, and political reforms which may
require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The
components of the comprehensive peace process
comprise the processes known as the "Paths to
Peace". These component processes are
interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall
include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND
POLITICAL REFORMS. This component involves
the vigorous implementation of various
policies, reforms, programs and projects
aimed at addressing the root causes of
internal armed conflicts and social unrest.
This may require administrative action, new
legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as
an attempt of respondents to address, pursuant to this
provision of E.O. No. 3, the root causes of the armed
conflict in Mindanao. The E.O. authorized them to "think
outside the box," so to speak. Hence, they negotiated and
were set on signing the MOA-AD that included various
social, economic, and political reforms which cannot,

however, all be accommodated within the present legal

framework, and which thus would require new legislation
and constitutional amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be
askedwhether the President herself may exercise
the power delegated to the GRP Peace Panel under
E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself
does not possess. May the President, in the course of
peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or
should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question
requires a discussion of the extent of the President's
power to conduct peace negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned
in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,168 in issue
was the authority of the President to declare a state of
rebellion - an authority which is not expressly provided for
in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice
Cortes put her thesis into jurisprudence. There,
the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her
exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . unstated residual powers which
are implied from the grant of
executive power and which
are necessary for her to comply
with her duties under the
Constitution. The powers of the
President are not limited to what
are expressly enumerated in the
article on the Executive Department
and in scattered provisions of the
Constitution. This is so,
notwithstanding the avowed intent of
the members of the Constitutional
Commission of 1986 to limit the powers
of the President as a reaction to the
abuses under the regime of Mr. Marcos,
for the result was a limitation of specific
powers of the President, particularly
those relating to the commander-in-chief
clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a
state of rebellion springs in the main from
her powers as chief executive and, at the
same time, draws strength from her
Commander-in-Chief powers. x x x (Emphasis
and underscoring supplied)
Similarly, the President's power to conduct peace
negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive,
the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the
more specific duty to prevent and suppress rebellion and
lawless violence.169

As the experience of nations which have similarly gone

through internal armed conflict will show, however, peace
is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political
and governance transition must form the core of
any post-conflict peace-building mission. As we
have observed in Liberia and Haiti over the last
ten years, conflict cessation without modification
of the political environment, even where statebuilding is undertaken through technical electoral
assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50
percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitutionmaking process can play an important role in the
political and governance transition. Constitutionmaking after conflict is an opportunity to create a
common vision of the future of a state and a road
map on how to get there. The constitution can be
partly a peace agreement and partly a framework
setting up the rules by which the new democracy
will operate.170
In the same vein, Professor Christine Bell, in her article on
the nature and legal status of peace agreements,
observed that the typical way that peace agreements
establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal
and human rights institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been recognized
by no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions 172is
the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then
Undersecretary of National Defense Carmelo Z. Barbero
and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so,
although I have some more questions, I will
reserve my right to ask them if they are not
covered by the other speakers. I have only two
questions.
I heard one of the Commissioners say that
local autonomy already exists in the Muslim
region; it is working very well; it has, in fact,
diminished a great deal of the problems. So, my
question is: since that already exists, why do
we have to go into something new?
MR. OPLE. May I answer that on behalf of
Chairman Nolledo. Commissioner Yusup Abubakar
is right thatcertain definite steps have been
taken to implement the provisions of the
Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a
good first step, but there is no question

that this is merely a partial response to the

Tripoli Agreement itself and to the fuller
standard of regional autonomy
contemplated in that agreement, and now
by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the
statutes enacted pursuant to them have, to the credit of
their drafters, been partly successful. Nonetheless, the
Filipino people are still faced with the reality of an ongoing conflict between the Government and the MILF. If
the President is to be expected to find means for bringing
this conflict to an end and to achieve lasting peace in
Mindanao, then she must be given the leeway to explore,
in the course of peace negotiations, solutions that may
require changes to the Constitution for their
implementation. Being uniquely vested with the power to
conduct peace negotiations with rebel groups, the
President is in a singular position to know the precise
nature of their grievances which, if resolved, may bring an
end to hostilities.
The President may not, of course, unilaterally implement
the solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would
have the option, pursuant to Article XVII, Sections 1 and 3
of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of
calling such a convention.
While the President does not possess constituent powers as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for
constitutional change to Congress in a manner that does
not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested
by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority
upheld the President's act, holding that "the urges of
absolute necessity" compelled the President as the agent
of the people to act as he did, there being no interim
National Assembly to propose constitutional amendments.
Against this ruling, Justices Teehankee and Muoz Palma
vigorously dissented. The Court's concern at present,
however, is not with regard to the point on which it was
then divided in that controversial case, but on that which
was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting.
While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have
upheld the President's action along with the majority had
the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee
opined:
"Since the Constitution provides for the
organization of the essential departments of
government, defines and delimits the powers of

each and prescribes the manner of the exercise

of such powers, and the constituent power has
not been granted to but has been withheld from
the President or Prime Minister, it follows that the
President's questioned decrees proposing and
submitting constitutional amendments directly to
the people (without the intervention of the
interim National Assembly in whom the
power is expressly vested) are devoid of
constitutional and legal basis."176 (Emphasis
supplied)
From the foregoing discussion, the principle may be
inferred that the President - in the course of conducting
peace negotiations - may validly consider implementing
even those policies that require changes to the
Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in
any way as if the assent of that body were assumed
as a certainty.
Since, under the present Constitution, the people also
have the power to directly propose amendments through
initiative and referendum, the President may also submit
her recommendations to the people, not as a formal
proposal to be voted on in a plebiscite similar to what
President Marcos did in Sanidad, but for their independent
consideration of whether these recommendations merit
being formally proposed through initiative.
These recommendations, however, may amount to
nothing more than the President's suggestions to the
people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its character
as a genuine "people's initiative." The only initiative
recognized by the Constitution is that which truly proceeds
from the people. As the Court stated in Lambino v.
COMELEC:177
"The Lambino Group claims that their initiative is
the people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 200602, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified
support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional
reforms.' The Lambino Group thus admits that
their people's' initiative is an unqualified
support to the agenda' of the incumbent
President to change the Constitution. This
forewarns the Court to be wary of incantations of
people's voice' or sovereign will' in the present
initiative."
It will be observed that the President has authority, as
stated in her oath of office,178 only to preserve and defend
the Constitution. Such presidential power does not,
however, extend to allowing her to change the
Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's
authority to propose constitutional amendments, since
her authority to propose new legislation is not in
controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation.

One of the more prominent instances the practice is

usually done is in the yearly State of the Nation Address of
the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget
prepared by the President, which - for all intents and
purposes - is a proposal for new legislation coming from
the President.179
The "suspensive clause" in the MOA-AD viewed in
light of the above-discussed standards
Given the limited nature of the President's authority to
propose constitutional amendments, she cannot
guarantee to any third party that the required
amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or
the people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states,
however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws "shall
come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the
legal framework." This stipulation does not bear the marks
of a suspensive condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal framework
will be effected, but when. That there is no uncertainty
being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated
changes shall be "with due regard to non derogation of
prior agreements and within the stipulated timeframe to
be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for
the GRP to effect the changes to the legal framework
contemplated in the MOA-AD - which changes would
include constitutional amendments, as discussed earlier. It
bears noting that,
By the time these changes are put in place, the
MOA-AD itself would be counted among the "prior
agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive
Compact would merely be the implementing details for
these "consensus points" and, notably, the deadline for
effecting the contemplated changes to the legal
framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE
is inconsistent with the limits of the President's
authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the
laws of the Republic of the Philippines will certainly be
adjusted to conform to all the "consensus points" found in
the MOA-AD. Hence, it must be struck down
as unconstitutional.
A comparison between the "suspensive clause" of the
MOA-AD with a similar provision appearing in the 1996
final peace agreement between the MNLF and the GRP is
most instructive.
As a backdrop, the parties to the 1996 Agreement
stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional period

involving the putting up of new administrative

structures through Executive Order, such as the Special
Zone of Peace and Development (SZOPAD) and the
Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the
new regional autonomous government through
amendment or repeal of R.A. No. 6734, which was then the
Organic Act of the ARMM.
The stipulations on Phase II consisted of specific
agreements on the structure of the expanded autonomous
region envisioned by the parties. To that extent, they are
similar to the provisions of the MOA-AD. There is, however,
a crucial difference between the two agreements. While
the MOA-AD virtually guarantees that the "necessary
changes to the legal framework" will be put in
place, the GRP-MNLF final peace agreement states thus:
"Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for
incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the
part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be
considered either as a binding agreement under
international law, or a unilateral declaration of the
Philippine government to the international community that
it would grant to the Bangsamoro people all the
concessions therein stated. Neither ground finds sufficient
support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof,
would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances
readily lead one to surmise that the MOA-AD would have
had the status of a binding international agreement had it
been signed. An examination of the prevailing principles in
international law, however, leads to the contrary
conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord
Amnesty180 (the Lom Accord case) of the Special Court of
Sierra Leone is enlightening. The Lom Accord was a
peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United
Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight
years at the time of signing. There were non-contracting
signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic
Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation
between the UN Secretary-General and the Sierra Leone
Government, another agreement was entered into by the
UN and that Government whereby the Special Court of
Sierra Leone was established. The sole purpose of the
Special Court, an international court, was to try persons
who bore the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November
30, 1996.
Among the stipulations of the Lom Accord was a provision
for the full pardon of the members of the RUF with respect
to anything done by them in pursuit of their objectives as
members of that organization since the conflict began.

In the Lom Accord case, the Defence argued that the

Accord created an internationally binding obligation not
to prosecute the beneficiaries of the amnesty provided
therein, citing, among other things, the participation of
foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however,
rejected this argument, ruling that the Lome Accord is not
a treaty and that it can only create binding obligations and
rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of
jurisdiction.
"37. In regard to the nature of a negotiated
settlement of an internal armed conflict it is
easy to assume and to argue with some
degree of plausibility, as Defence counsel
for the defendants seem to have done, that
the mere fact that in addition to the parties
to the conflict, the document formalizing
the settlement is signed by foreign heads of
state or their representatives and
representatives of international
organizations, means the agreement of the
parties is internationalized so as to create
obligations in international law.

obligation enforceable in international, as

distinguished from municipal, law. A breach
of the terms of such a peace agreement resulting
in resumption of internal armed conflict or
creating a threat to peace in the determination of
the Security Council may indicate a reversal of
the factual situation of peace to be visited with
possible legal consequences arising from the new
situation of conflict created. Such consequences
such as action by the Security Council pursuant
to Chapter VII arise from the situation and not
from the agreement, nor from the obligation
imposed by it. Such action cannot be regarded as
a remedy for the breach. A peace agreement
which settles an internal armed conflict
cannot be ascribed the same status as one
which settles an international armed
conflict which, essentially, must be between
two or more warring States. The Lom
Agreement cannot be characterised as an
international instrument. x x x" (Emphasis,
italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations
not parties to the Agreement would not have sufficed to
vest in it a binding character under international law.

xxxx
40. Almost every conflict resolution will involve
the parties to the conflict and the mediator or
facilitator of the settlement, or persons or bodies
under whose auspices the settlement took place
but who are not at all parties to the conflict, are
not contracting parties and who do not claim any
obligation from the contracting parties or incur
any obligation from the settlement.
41. In this case, the parties to the conflict
are the lawful authority of the State and the
RUF which has no status of statehood and is
to all intents and purposes a faction within
the state. The non-contracting signatories
of the Lom Agreement were moral
guarantors of the principle that, in the
terms of Article XXXIV of the Agreement,
"this peace agreement is implemented with
integrity and in good faith by both parties".
The moral guarantors assumed no legal
obligation. It is recalled that the UN by its
representative appended, presumably for
avoidance of doubt, an understanding of the
extent of the agreement to be implemented as
not including certain international crimes.
42. An international agreement in the nature of a
treaty must create rights and obligations
regulated by international law so that a breach of
its terms will be a breach determined under
international law which will also provide principle
means of enforcement. The Lom Agreement
created neither rights nor obligations
capable of being regulated by international
law. An agreement such as the Lom
Agreement which brings to an end an
internal armed conflict no doubt creates a
factual situation of restoration of peace
that the international community acting
through the Security Council may take note
of. That, however, will not convert it to an
international agreement which creates an

In another vein, concern has been raised that the MOA-AD

would amount to a unilateral declaration of the Philippine
State, binding under international law, that it would
comply with all the stipulations stated therein, with the
result that it would have to amend its Constitution
accordingly regardless of the true will of the people. Cited
as authority for this view is Australia v. France,181 also
known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the
ICJ the legality of France's nuclear tests in the South
Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from
other French officials including its Minister of Defence, that
its 1974 series of atmospheric tests would be its last,
persuaded the ICJ to dismiss the case.182 Those
statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required
no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made
by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating
legal obligations. Declarations of this kind may
be, and often are, very specific. When it is the
intention of the State making the
declaration that it should become bound
according to its terms, that intention
confers on the declaration the character of
a legal undertaking, the State being
thenceforth legally required to follow a
course of conduct consistent with the
declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even
though not made within the context of
international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro

quo nor any subsequent acceptance of the

declaration, nor even any reply or reaction from
other States, is required for the declaration to
take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of
the juridical act by which the pronouncement by
the State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to take
up a certain position in relation to a
particular matter with the intention of
being bound-the intention is to be
ascertained by interpretation of the
act. When States make statements by which
their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of
atmospheric tests would be the last, the
French Government conveyed to the world
at large, including the Applicant, its
intention effectively to terminate these
tests. It was bound to assume that other
States might take note of these statements
and rely on their being effective. The
validity of these statements and their legal
consequences must be considered within
the general framework of the security of
international intercourse, and the confidence
and trust which are so essential in the relations
among States. It is from the actual substance
of these statements, and from the
circumstances attending their making, that
the legal implications of the unilateral act
must be deduced. The objects of these
statements are clear and they were
addressed to the international community
as a whole, and the Court holds that they
constitute an undertaking possessing legal
effect. The Court considers *270 that the
President of the Republic, in deciding upon the
effective cessation of atmospheric tests, gave an
undertaking to the international community to
which his words were addressed. x x x (Emphasis
and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as
a unilateral declaration only when the following conditions
are present: the statements were clearly addressed to the
international community, the state intended to be bound
to that community by its statements, and that not to give
legal effect to those statements would be detrimental to
the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling
was recognized in a later case decided by the ICJ
entitled Burkina Faso v. Mali,183 also known as the Case
Concerning the Frontier Dispute. The public declaration
subject of that case was a statement made by the
President of Mali, in an interview by a foreign press
agency, that Mali would abide by the decision to be issued
by a commission of the Organization of African Unity on a
frontier dispute then pending between Mali and Burkina
Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the
statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author
of a unilateral act, account must be taken of all
the factual circumstances in which the act
occurred. For example, in the Nuclear Tests
cases, the Court took the view that since
the applicant States were not the only ones
concerned at the possible continuance of
atmospheric testing by the French
Government, that Government's unilateral
declarations had conveyed to the world at
large, including the Applicant, its intention
effectively to terminate these tests (I.C.J.
Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those
cases, the French Government could not
express an intention to be bound otherwise
than by unilateral declarations. It is difficult
to see how it could have accepted the terms
of a negotiated solution with each of the
applicants without thereby jeopardizing its
contention that its conduct was lawful. The
circumstances of the present case are
radically different. Here, there was nothing
to hinder the Parties from manifesting an
intention to accept the binding character of
the conclusions of the Organization of
African Unity Mediation Commission by the
normal method: a formal agreement on the
basis of reciprocity. Since no agreement of this
kind was concluded between the Parties, the
Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of
State on 11 April 1975 as a unilateral act with
legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it
would not have amounted to a unilateral declaration on
the part of the Philippine State to the international
community. The Philippine panel did not draft the same
with the clear intention of being bound thereby to the
international community as a whole or to any State, but
only to the MILF. While there were States and international
organizations involved, one way or another, in the
negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of
Malaysia, as facilitator. As held in the Lom Accord case,
the mere fact that in addition to the parties to the conflict,
the peace settlement is signed by representatives of
states and international organizations does not mean that
the agreement is internationalized so as to create
obligations in international law.
Since the commitments in the MOA-AD were not addressed
to States, not to give legal effect to such commitments
would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the
relations among States.
In one important respect, the circumstances surrounding
the MOA-AD are closer to that of Burkina Faso wherein, as
already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in
that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other

States, to manifest that intention by formal agreement.

Here, that formal agreement would have come about by
the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the
MILF, and by an equally clear indication that the
signatures of the participating states-representatives
would constitute an acceptance of that commitment.
Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government
before the international community, which was one of the
difficulties that prevented the French Government from
entering into a formal agreement with other countries.
That the Philippine panel did not enter into such a formal
agreement suggests that it had no intention to be bound
to the international community. On that ground, the MOAAD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding,
respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion.
The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state
within a state, but in their brazen willingness
toguarantee that Congress and the sovereign
Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent
of giving up a portion of its own territory to the Moros for
the sake of peace, for it can change the Constitution in
any it wants, so long as the change is not inconsistent with
what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in
that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution.
Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental
importance, the Court grants the petitioners, petitionersin-intervention and intervening respondents the
requisitelocus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the nonsigning of the MOA-AD and the eventual dissolution of the
GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the
"moot and academic" principle in view of (a) the grave
violation of the Constitution involved; (b) the exceptional
character of the situation and paramount public interest;
(c) the need to formulate controlling principles to guide
the bench, the bar, and the public; and (d) the fact that
the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus
have been rendered moot in view of the respondents'
action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its
annexes.
The people's right to information on matters of public
concern under Sec. 7, Article III of the Constitution is
insplendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest
under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.
The complete and effective exercise of the right to
information necessitates that its complementary provision
on public disclosure derive the same self-executory nature,
subject only to reasonable safeguards or limitations as
may be provided by law.
The contents of the MOA-AD is a matter of paramount
public concern involving public interest in the highest
order. In declaring that the right to information
contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial
character of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between
the government and the people. Corollary to these twin
rights is the design for feedback mechanisms. The right to
public consultation was envisioned to be a species of
these public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to
be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for
continuing consultations on both national and local levels
and for a principal forum for consensus-building. In fact, it
is the duty of the Presidential Adviser on the Peace Process
to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace
partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code
of 1991 requires all national offices to conduct
consultations before any project or program critical to the

environment and human ecology including those that may

call for the eviction of a particular group of people residing
in such locality, is implemented therein. The MOA-AD is
one peculiar program that unequivocally and unilaterally
vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to
the diaspora or displacement of a great number of
inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples
Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free
and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute
does not grant the Executive Department or any
government agency the power to delineate and recognize
an ancestral domain claim by mere agreement or
compromise.
The invocation of the doctrine of executive privilege as a
defense to the general right to information or the specific
right to consultation is untenable. The various explicit
legal provisions fly in the face of executive secrecy. In any
event, respondents effectively waived such defense after
it unconditionally disclosed the official copies of the final
draft of the MOA-AD, for judicial compliance and public
scrutiny.
In sum, the Presidential Adviser on the Peace Process
committed grave abuse of discretion when he failed to
carry out the pertinent consultation process, as mandated
by E.O. No. 3, Republic Act No. 7160, and Republic Act No.
8371. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It
illustrates a gross evasion of positive duty and a virtual
refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but
the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the
BJE, areunconstitutional, for the concept presupposes
that the associated entity is a state and implies that the
same is on its way to independence.
While there is a clause in the MOA-AD stating that the
provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion
of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government
is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary
amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel
nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or
interference with that process.

While the MOA-AD would not amount to an international

agreement or unilateral declaration binding on the
Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally
defective.
WHEREFORE, respondents' motion to dismiss is DENIED.
The main and intervening petitions are GIVEN DUE
COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain
Aspect of the GRP-MILF Tripoli Agreement on Peace of
2001 is declared contrary to law and the Constitution.
SO ORDERED.
RESIDENT MARINE MAMMALS OF THE PROTECTED
SEASCAPE TAON STRAIT vs. SECRETARY ANGELO
REYES
On June 13, 2002, the Government of the Philippines,
acting through the DOE, entered into a Geophysical
Survey and Exploration Contract-I 02 (GSEC-102) with
JAPEX. This contract involved geological and geophysical
studies of the Taon Strait. The studies included surface
geology, sample analysis, and reprocessing of seismic and
magnetic data. JAPEX, assisted by DOE, also conducted
geophysical and satellite surveys, as well as oil and gas
sampling in Taon Strait.7
On December 21, 2004, DOE and JAPEX formally
converted GSEC-102 into SC-46 for the exploration,
development, and production of petroleum resources in a
block covering approximately 2,850 square kilometers
offshore the Taon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic surveys
in and around the Taon Strait. A multi-channel subbottom profiling covering approximately 751 kilometers
was also done to determine the area's underwater
composition.9
JAPEX committed to drill one exploration well during the
second sub-phase of the project. Since the well was to be
drilled in the marine waters of Aloguinsan and
Pinamungajan, where the Taon Strait was declared a
protected seascape in 1988, 10 JAPEX agreed to comply
with the Environmental Impact Assessment requirements
pursuant to Presidential Decree No. 1586, entitled
"Establishing An Environmental Impact Statement System,
Including Other Environmental Management Related
Measures And For Other Purposes." 11
On January 31, 2007, the Protected Area Management
Board12 of the Taon Strait (PAMB-Taon Strait) issued
Resolution No. 2007-001,13 wherein it adopted the Initial
Environmental Examination (IEE) commissioned by JAPEX,
and favorably recommended the approval of JAPEX's
application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an
ECC to the DOE and JAPEX for the offshore oil and gas

exploration project in Taon Strait. 14 Months later, on

November 16, 2007, JAPEX began to drill an exploratory
well, with a depth of 3,150 meters, near Pinamungajan
town in the western Cebu Province.15 This drilling lasted
until February 8, 2008.16
It was in view of the foregoing state of affairs that
petitioners applied to this Court for redress, via two
separate original petitions both dated December 1 7,
2007, wherein they commonly seek that respondents be
enjoined from implementing SC-46 for, among others,
violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike 17 its name
as a respondent on the ground that it is not the Philippine
agent of JAPEX. In support of its motion, it submitted the
branch office application of JAPEX,18 wherein the latter's
resident agent was clearly identified. SOS claimed that it
had acted as a mere logistics contractor for JAPEX in its oil
and gas exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards
opposed SOS' s motion on the ground that it was
premature, it was pro-forma, and it was patently dilatory.
They claimed that SOS admitted that "it is in law a (sic)
privy to JAPEX" since it did the drilling and other
exploration activities in Taon Strait under the instructions
of its principal, JAPEX. They argued that it would be
premature to drop SOS as a party as JAPEX had not yet
been joined in the case; and that it was "convenient" for
SOS to ask the Court to simply drop its name from the
parties when what it should have done was to either notify
or ask JAPEX to join it in its motion to enable proper
substitution. At this juncture, petitioners Resident Marine
Mammals and Stewards also asked the Court to" implead
JAPEX Philippines as a corespondent or as a substitute for
its parent company, JAPEX.19
On April 8, 2008, the Court resolved to consolidate G.R.
No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested 20 that they were
adopting in toto the Opposition to Strike with Motion to
Implead filed by petitioners Resident Marine Mammals and
Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their
Manifestation21 that they were not objecting to SOS's
Motion to Strike as it was not JAPEX's resident agent. JAPEX
during all this time, did not file any comment at all.
Thus, on February 7, 2012, this Court, in an effort to
ensure that all the parties were given ample chance and
opportunity to answer the issues herein, issued a
Resolution directing the Court's process servicing unit to
again serve the parties with a copy of the September 23,
2008 Resolution of the Court, which gave due course to
the petitions in G.R. Nos. 180771 and 181527, and which
required the parties to submit their respective
memoranda.

This Resolution was personally served to the above

parties, at the above addresses on February 23, 2012. On
March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way
of special appearance, filed a Motion to Admit 23 its Motion
for Clarification,24 wherein JAPEX PH requested to be
clarified as to whether or not it should deem the February
7, 2012 Resolution as this Court's Order of its inclusion in
the case, as it has not been impleaded. It also alleged that
JAPEX PH had already stopped exploration activities in the
Taft. on Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance,
filed a Motion for Extension of Time 25 to file its
Memorandum. It stated that since it received the February
7, 2012 Resolution on February 23, 2012, it had until
March 22, 2012 to file its Memorandum. JAPEX PH then
asked for an additional thirty days, supposedly to give this
Court some time to consider its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution 26 granting
JAPEX PH's Motion to Admit its Motion for Clarification. This
Court, addressing JAPEX PH's Motion for Clarification, held:
With regard to its Motion for Clarification (By Special
Appearance) dated March 19, 2012, this Court considers
JAPEX Philippines, Ltd. as a real party-in-interest in these
cases. Under Section 2, Rule 3 of the 1997 Rules of Court,
a 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. Contrary to JAPEX
Philippines, Ltd. 's allegation that it is a completely distinct
corporation, which should not be confused with JAPEX
Company, Ltd., JAPEX Philippines, Ltd. is a mere branch
office, established by JAPEX Company, Ltd. for the purpose
of carrying out the latter's business transactions here in
the Philippines. Thus, JAPEX Philippines, Ltd., has no
separate personality from its mother foreign corporation,
the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides
for the responsibilities and duties of a resident agent of a
foreign corporation:
SECTION 128. Resident agent; service of process. - The
Securities and Exchange Commission shall require as a
condition precedent to the issuance of the license to
transact business in the Philippines by any foreign
corporation that such corporation file with the Securities
and Exchange Commission a written power of attorney
designating some person who must be a resident of the
Philippines, on whom any summons and other legal
processes may be served in all actions or other legal
proceedings against such corporation, and consenting that
service upon such resident agent shall be admitted and
held as valid as if served upon the duly authorized officers
of the foreign corporation at its home office. Any such
foreign corporation shall likewise execute and file with the
Securities and Exchange Commission an agreement or
stipulation, executed by the proper authorities of said
corporation, in form and substance as follows:

"The (name of foreign corporation) does hereby stipulate

and agree, in consideration of its being granted by the
Securities and Exchange Commission a license to transact
business in the Philippines, that if at any time said
corporation shall cease to transact business in the
Philippines, or shall be without any resident agent in the
Philippines on whom any summons or other legal
processes may be served, then in any action or proceeding
arising out of any business or transaction which occurred
in the Philippines, service of any summons or other legal
process may be made upon the Securities and Exchange
Commission and that such service shall have the same
force and effect as if made upon the duly-authorized
officers of the corporation at its home office."
Whenever such service of summons or other process shall
be made upon the Securities and Exchange Commission,
the Commission shall, within ten (10) days thereafter,
transmit by mail a copy of such summons or other legal
process to the corporation at its home or principal office.
The sending of such copy by the Commission shall be a
necessary part of and shall complete such service. All
expenses incurred by the Commission for such service
shall be paid in advance by the party at whose instance
the service is made.
In case of a change of address of the resident agent, it
shall be his or its duty to immediately notify in writing the
Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of
a resident agent is to receive summons or legal processes
that may be served in all actions or other legal
proceedings against the foreign corporation. These cases
have been prosecuted in the name of JAPEX Company,
Ltd., and JAPEX Philippines Ltd., as its branch office and
resident agent, had been receiving the various resolutions
from this Court, as evidenced by Registry Return Cards
signed by its representatives.
And in the interest of justice, this Court resolved to grant
JAPEX PH's motion for extension of time to file its
memorandum, and was given until April 21, 2012, as
prayed for, within which to comply with the submission. 27
Without filing its Memorandum, JAPEX PH, on May 14,
2012, filed a motion, asking this Court for an additional
thirty days to file its Memorandum, to be counted from
May 8, 2012. It justified its request by claiming that this
Court's April 24, 2012 Resolution was issued past its
requested deadline for filing, which was on April 21,
2012.28
On June 19, 2012, this Court denied JAPEX PH's second
request for additional time to file its Memorandum and
dispensed with such filing.
Since petitioners had already filed their respective
memoranda,29 and public respondents had earlier filed a
Manifestation30 that they were adopting their Comment
dated March 31, 2008 as their memorandum, this Court
submitted the case for decision.

Petitioners.' Allegations
Protesting the adverse ecological impact of JAPEX's oil
exploration activities in the Taon Strait, petitioners
Resident Marine Mammals and Stewards aver that a study
made after the seismic survey showed that the fish catch
was reduced drastically by 50 to 70 percent. They claim
that before the seismic survey, the average harvest per
day would be from 15 to 20 kilos; but after the activity, the
fisherfolk could only catch an average of 1 to 2 kilos a day.
They attribute this "reduced fish catch" to the destruction
of the ''payao," also known as the "fish aggregating
device" or "artificial reef."31 Petitioners Resident Marine
Mammals and Stewards also impute the incidences of "fish
kill"32 observed by some of the local fisherfolk to the
seismic survey. And they further allege that the ECC
obtained by private respondent JAPEX is invalid because
public consultations and discussions with the affected
stakeholders, a pre-requisite to the issuance of the ECC,
were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms
petitioners Resident Marine Mammals and Stewards'
allegations of reduced fish catch and lack of public
consultations or discussions with the fisherfolk and other
stakeholders prior to the issuance of the ECC. Moreover, it
alleges that during the seismic surveys and drilling, it was
barred from entering and fishing within a 7-kilometer
radius from the point where the oilrig was located, an area
greater than the 1.5-kilometer radius "exclusion zone"
stated in the IEE.33 It also agrees in the allegation that
public respondents DENR and EMB abused their discretion
when they issued an ECC to public respondent DOE and
private respondent JAPEX without ensuring the strict
compliance with the procedural and substantive
requirements under the Environmental Impact Assessment
system, the Fisheries Code, and their implementing rules
and regulations.34 It further claims that despite several
requests for copies of all the documents pertaining to the
project in Taon Strait, only copies of the P AMB-Taon
Strait Resolution and the ECC were given to the
fisherfolk.35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend
that petitioners Resident Marine Mammals and Stewards
have no legal standing to file the present petition; that SC46 does not violate the 1987 Constitution and the various
laws cited in the petitions; that the ECC was issued in
accordance with existing laws and regulations; that public
respondents may not be compelled by mandamus to
furnish petitioners copies of all documents relating to SC46; and that all the petitioners failed to show that they are
entitled to injunctive relief. They further contend that the
issues raised in these petitions have been rendered moot
and academic by the fact that SC-46 had been mutually
terminated by the parties thereto effective June 21,
2008.36
Legality
Service

of
Service
Contract

Contract
No.
46

No.
46
vis-a-vis

Section
2,
1987 Constitution

Article

XII

of

the

Petitioners maintain that SC-46 transgresses the Jura

Regalia Provision or paragraph 1, Section 2, Article XII of
the 1987 Constitution because JAPEX is 100% Japaneseowned.60 Furthermore, the FIDEC asserts that SC-46
cannot be considered as a technical and financial
assistance agreement validly executed under paragraph 4
of the same provision.61 The petitioners claim that La
Bugal-B'laan Tribal Association, Inc. v. Ramos62 laid down
the guidelines for a valid service contract, one of which is
that there must exist a general law for oil exploration
before a service contract may be entered into by the
Government. The petitioners posit that the service
contract in La Bugal is presumed to have complied with
the requisites of (a) legislative enactment of a general law
after the effectivity of the 1987 Constitution (such as
Republic Act No. 7942, or the Philippine Mining Law of
1995, governing mining contracts) and (b) presidential
notification. The petitioners thus allege that the ruling in
La Bugal, which involved mining contracts under Republic
Act No. 7942, does not apply in this case. 63 The petitioners
also argue that Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972 cannot legally
justify SC-46 as it is deemed to have been repealed by the
1987 Constitution and subsequent laws, which enunciate
new policies concerning the environment. 64 In addition,
petitioners in G.R. No. 180771 claim that paragraphs 2 and
3 of Section 2, Article XII of the 1987 Constitution mandate
the exclusive use and enjoyment by the Filipinos of our
natural resources,65 and paragraph 4 does not speak of
service contracts but of FTAAs or Financial Technical
Assistance Agreements.66
The public respondents again controvert the petitioners'
claims and asseverate that SC-46 does not violate Section
2, Article XII of the 1987 Constitution. They hold that SC46 does not fall under the coverage of paragraph 1 but
instead, under paragraph 4 of Section 2, Article XII of the
1987 Constitution on FTAAs. They also insist that
paragraphs 2 and 3, which refer to the grant of exclusive
fishing right to Filipinos, are not applicable to SC-46 as the
contract does not grant exclusive fishing rights to JAPEX
nor does it otherwise impinge on the FIDEC's right to
preferential use of communal marine and fishing
resources.67
Ruling of the Court
On
the
legality
of
Service
Contract
No.
vis-a-vis Section 2, Article XII of the 1987 Constitution

natural resources shall not be alienated. The exploration,

development, and utilization of natural resources shall be
under the full control and supervision of the State. The
State may directly undertake such activities, or it may
enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations
or associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not
more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water
rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. The Congress may, by law,
allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority
to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreignowned corporations involving either technical or financial
assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils
according to the general terms and conditions provided by
law, based on real contributions to the economic growth
and general welfare of the country. In such agreements,
the State shall promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty
days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether
service contracts are still allowed under the 1987
Constitution. In La Bugal, we held that the deletion of the
words "service contracts" in the 1987 Constitution did not
amount to a ban on them per se. In fact, in that decision,
we quoted in length, portions of the deliberations of the
members of the Constitutional Commission (ConCom) to
show that in deliberating on paragraph 4, Section 2, Article
XII, they were actually referring to service contracts as
understood in the 1973 Constitution, albeit with safety
measures to eliminate or minimize the abuses prevalent
during the martial law regime, to wit: Summation of the

46

The petitioners insist that SC-46 is null and void for having
violated Section 2, Article XII of the 1987 Constitution,
which reads as follows:
Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other

ConCom Deliberations
At this point, we sum up the matters established, based on
a careful reading of the Con Com deliberations, as follows:
In their deliberations on what was to become paragraph 4,
the framers used the term service contracts in referring to
agreements x x x involving either technical or financial
assistance.

They spoke of service contracts as the concept was

understood in the 1973 Constitution.
It was obvious from their discussions that they were not
about to ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in
place safeguards that would eliminate or minimize the
abuses prevalent during the marital law regime. In brief,
they were going to permit service contracts with foreign
corporations as contractors, but with safety measures to
prevent abuses, as an exception to the general norm
established in the first paragraph of Section 2 of Article XII.
This provision reserves or limits to Filipino citizens -- and
corporations at least 60 percent of which is owned by such
citizens -- the exploration, development and utilization of
natural resources.
This provision was prompted by the perceived insufficiency
of Filipino capital and the felt need for foreign investments
in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of
safeguards that would be considered adequate and
reasonable. But some of them, having more "radical"
leanings, wanted to ban service contracts altogether; for
them, the provision would permit aliens to exploit and
benefit from the nation's natural resources, which they felt
should be reserved only for Filipinos.
In the explanation of their votes, the individual
commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated
their philosophies, and supported or attacked the
provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy
and Patrimony -- including paragraph 4 allowing service
contracts with foreign corporations as an exception to the
general norm in paragraph 1 of Section 2 of the same
article --was resoundingly approved by a vote of 32 to 7,
with 2 abstentions.
Agreements
Involving
Or
Financial
Assistance
Service Contracts with Safeguards

Technical
Are

From the foregoing, we are impelled to conclude that the

phrase agreements involving either technical or financial
assistance, referred to in paragraph 4, are in fact service
contracts. But unlike those of the 1973 variety, the new
ones are between foreign corporations acting as
contractors on the one hand; and on the other, the
government as principal or "owner" of the works. In the
new service contracts, the foreign contractors provide
capital, technology and technical know-how, and
managerial expertise in the creation and operation of
large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB), actively
exercises control and supervision over the entire
operation.68

In summarizing the matters discussed in the ConCom, we

established that paragraph 4, with the safeguards in place,
is the exception to paragraph 1, Section 2 of Article XII.
The following are the safeguards this Court enumerated in
La Bugal:
Such service contracts may be entered into only with
respect to minerals, petroleum and other mineral oils. The
grant thereof is subject to several safeguards, among
which are these requirements:
(1) The service contract shall be crafted in
accordance with a general law that will set
standard or uniform terms, conditions and
requirements, presumably to attain a certain
uniformity in provisions and avoid the possible
insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the
government because, supposedly before an
agreement is presented to the President for
signature, it will have been vetted several times
over at different levels to ensure that it conforms
to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement,
the President shall report it to Congress to give
that branch of government an opportunity to look
over the agreement and interpose timely
objections, if any.69
Adhering to the aforementioned guidelines, this Court
finds that SC-46 is indeed null and void for noncompliance
with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation,
and utilization of indigenous petroleum in the Philippines
are governed by Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972. This was
enacted by then President Ferdinand Marcos to promote
the discovery and production of indigenous petroleum
through the utilization of government and/or local or
foreign private resources to yield the maximum benefit to
the Filipino people and the revenues to the Philippine
Government.70
Contrary to the petitioners' argument, Presidential Decree
No. 87, although enacted in 1972, before the adoption of
the 1987 Constitution, remains to be a valid law unless
otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.

If there were any intention to repeal Presidential Decree

No. 87, it would have been done expressly by Congress.
For instance, Republic Act No. 7160, more popularly known
as the Local Government Code of 1991, expressly repealed
a number of laws, including a specific provision in
Presidential Decree No. 87, viz.:
SECTION 534. Repealing Clause. - (a) Batas Pambansa Blg.
337, otherwise known as the "Local Government Code,"
Executive Order No. 112 (1987), and Executive Order No.
319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and
such
other
decrees,
orders,
instructions,
memoranda and issuances related to or
concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of
Republic Act No. 1939 regarding hospital fund;
Section 3, a (3) and b (2) of Republic Act No. 5447
regarding
the
Special
Education
Fund;
Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended;
Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752,
and 1136 are hereby repealed and rendered of no
force and effect.
(d) Presidential Decree No. 1594 is hereby
repealed insofar as it governs locally-funded
projects.
(e) The following provisions are hereby repealed
or amended insofar as they are inconsistent with
the provisions of this Code: Sections 2, 16 and 29
of Presidential Decree No. 704; Section 12 of
Presidential Decree No. 87, as amended; Sections
52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and
Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city
charters,
decrees,
executive
orders,
proclamations and administrative regulations, or
part or parts thereof which are inconsistent with
any of the provisions of this Code are hereby
repealed or modified accordingly. (Emphasis
supplied.)
This Court could not simply assume that while Presidential
Decree No. 87 had not yet been expressly repealed, it had
been impliedly repealed. As we held in Villarea v. The
Commission on Audit,71 "[i]mplied repeals are not lightly
presumed." It is a settled rule that when laws are in
conflict with one another, every effort must be exerted to
reconcile them. In Republic of the Philippines v. Marcopper
Mining Corporation,72 we said:

The two laws must be absolutely incompatible, and a clear

finding thereof must surface, before the inference of
implied repeal may be drawn. The rule is expressed in the
maxim, interpretare et concordare leqibus est optimus
interpretendi, i.e., every statute must be so interpreted
and brought into accord with other laws as to form a
uniform system of jurisprudence. The fundament is that
the legislature should be presumed to have known the
existing laws on the subject and not have enacted
conflicting statutes. Hence, all doubts must be resolved
against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on
the subject. (Citation omitted.)
Moreover, in cases where the statute seems to be in
conflict with the Constitution, but a construction that it is
in harmony with the Constitution is also possible, that
construction should be preferred.73 This Court, in
Pangandaman v. Commission on Elections74 expounding on
this point, pronounced:
It is a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution
and that the spirit, rather than the letter of the law
determines its construction; for that reason, a statute
must be read according to its spirit and intent. x x x.
(Citation omitted.)
Consequently, we find no merit in petitioners' contention
that SC-46 is prohibited on the ground that there is no
general law prescribing the standard or uniform terms,
conditions, and requirements for service contracts
involving oil exploration and extraction.
But note must be made at this point that while Presidential
Decree No. 87 may serve as the general law upon which a
service contract for petroleum exploration and extraction
may be authorized, as will be discussed below, the
exploitation and utilization of this energy resource in the
present case may be allowed only through a law passed by
Congress, since the Taon Strait is a NIPAS75 area.
2. President was not the signatory to SC-46 and the same
was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is
sufficient to satisfy the requirement of a general law, the
absence of the two other conditions, that the President be
a signatory to SC-46, and that Congress be notified of such
contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have
conformed not only to the provisions of Presidential
Decree No. 87, but also to those of the 1987 Constitution.
The Civil Code provides: ARTICLE 1306. The contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public
order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals, 76 this Court held
that:

It is basic that the law is deemed written into every

contract. Although a contract is the law between the
parties, the provisions of positive law which regulate
contracts are deemed written therein and shall limit and
govern the relations between the parties. x x x. (Citations
omitted.) Paragraph 4, Section 2, Article XII of the 1987
Constitution requires that the President himself enter into
any service contract for the exploration of petroleum. SC46 appeared to have been entered into and signed only by
the DOE through its then Secretary, Vicente S. Perez, Jr.,
contrary to the said constitutional requirement. Moreover,
public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of
such contract.
Public respondents' implied argument that based on the
"alter ego principle," their acts are also that of then
President Macapagal-Arroyo's, cannot apply in this case. In
Joson v. Torres,77 we explained the concept of the alter ego
principle or the doctrine of qualified political agency and
its limit in this wise:
Under this doctrine, which recognizes the establishment of
a single executive, all executive and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of
the situation demand that he act personally, the
multifarious executive and administrative functions of the
Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the
regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the acts
of the Chief Executive. (Emphasis ours, citation omitted.)
While the requirements in executing service contracts in
paragraph 4, Section 2 of Article XII of the 1987
Constitution seem like mere formalities, they, in reality,
take on a much bigger role. As we have explained in La
Bugal, they are the safeguards put in place by the framers
of the Constitution to "eliminate or minimize the abuses
prevalent during the martial law regime." 78 Thus, they are
not just mere formalities, which will only render a contract
unenforceable but not void, if not complied with. They are
requirements placed, not just in an ordinary statute, but in
the fundamental law, the non-observance of which will
nullify the contract. Elucidating on the concept of a
"constitution," this Court, in Manila Prince Hotel v.
Government Service Insurance System,79 held:
A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain
fixed principles on which government is founded. The
fundamental conception in other words is that it is a

supreme law to which all other laws must conform and in

accordance with which all private rights must be
determined and all public authority administered. Under
the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for
private purposes is null and void and without any force
and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it
is deemed written in every statute and contract.
(Emphasis ours.)
As this Court has held in La Bugal, our Constitution
requires that the President himself be the signatory of
service agreements with foreign-owned corporations
involving the exploration, development, and utilization of
our minerals, petroleum, and other mineral oils. This
power cannot be taken lightly.
In this case, the public respondents have failed to show
that the President had any participation in SC-46. Their
argument that their acts are actually the acts of then
President Macapagal-Arroyo, absent proof of her
disapproval, must fail as the requirement that the
President herself enter into these kinds of contracts is
embodied not just in any ordinary statute, but in the
Constitution itself. These service contracts involving the
exploitation, development, and utilization of our natural
resources are of paramount interest to the present and
future generations. Hence, safeguards were put in place to
insure that the guidelines set by law are meticulously
observed and likewise to eradicate the corruption that
may easily penetrate departments and agencies by
ensuring that the President has authorized or approved of
these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it
is required that the Petroleum Board, now the DOE, obtain
the President's approval for the execution of any contract
under said statute, as shown in the following provision:
SECTION 5. Execution of contract authorized in this Act.
-Every contract herein authorized shall, subject to the
approval of the President, be executed by the Petroleum
Board created in this Act, after due public notice prequalification and public bidding or concluded through
negotiations. In case bids are requested or if requested no
bid is submitted or the bids submitted are rejected by the
Petroleum Board for being disadvantageous to the
Government, the contract may be concluded through
negotiation.
In opening contract areas and in selecting the best offer
for petroleum operations, any of the following alternative
procedures may be resorted to by the Petroleum Board,
subject to prior approval of the President[.]
Even if we were inclined to relax the requirement in La
Bugal to harmonize the 1987 Constitution with the
aforementioned provision of Presidential Decree No. 87, it
must be shown that the government agency or

subordinate official has been authorized by the President

to enter into such service contract for the government.
Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None of
these circumstances is evident in the case at bar.
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates
Section 27 of Republic Act. No. 9147 or the Wildlife
Resources Conservation and Protection Act, which bans all
marine exploration and exploitation of oil and gas
deposits. They also aver that Section 14 of Republic Act
No. 7586 or the National Integrated Protected Areas
System Act of 1992 (NIPAS Act), which allows the
exploration of protected areas for the purpose of
information-gathering, has been repealed by Section 27 of
Republic Act No. 914 7. The said petitioners further claim
that SC-46 is anathema to Republic Act No. 8550 or the
Philippine Fisheries Code of 1998, which protects the rights
of the fisherfolk in the preferential use of municipal
waters, with the exception being limited only to research
and survey activities.80
The FIDEC, for its part, argues that to avail of the
exceptions under Section 14 of the NIP AS Act, the
gathering of information must be in accordance with a
DENR-approved program, and the exploitation and
utilization of energy resources must be pursuant to a
general law passed by Congress expressly for that
purpose. Since there is neither a DENR approved program
nor a general law passed by Congress, the seismic surveys
and oil drilling operations were all done illegally. 81 The
FIDEC likewise contends that SC-46 infringes on its right to
the preferential use of the communal fishing waters as it is
denied free access within the prohibited zone, in violation
not only of the Fisheries Code but also of the 1987
Constitutional provisions on subsistence fisherfolk and
social justice.82 Furthermore, the FIDEC believes that the
provisions in Presidential Decree No. 87, which allow
offshore drilling even in municipal waters, should be
deemed to have been rendered inoperative by the
provisions of Republic Act No. 8550 and Republic Act No.
7160, which reiterate the social justice provisions of the
Constitution.83
The public respondents invoke the rules on statutory
construction and argue that Section 14 of the NIP AS Act is
a more particular provision and cannot be deemed to have
been repealed by the more general prohibition in Section
27 of Republic Act No. 9147. They aver that Section 14,
under which SC-46 falls, should instead be regarded as an
exemption to Section 27.84 Addressing the claim of
petitioners in G.R. No. 180771 that there was a violation of
Section 27 of Republic Act No. 9147, the public
respondents assert that what the section prohibits is the
exploration of minerals, which as defined in the Philippine
Mining Act of 1995, exclude energy materials such as coal,
petroleum, natural gas, radioactive materials and
geothennal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply.85

The public respondents defend the validity of SC-46 and

insist that it does not grant exclusive fishing rights to
JAPEX; hence, it does not violate the rule on preferential
use of municipal waters. Moreover, they allege that JAPEX
has not banned fishing in the project area, contrary to the
FIDEC's claim. The public respondents also contest the
attribution of the declining fish catch to the seismic
surveys and aver that the allegation is unfounded. They
claim that according to the Bureau of Fisheries and Aquatic
Resources' fish catch data, the reduced fish catch started
in the 1970s due to destructive fishing practices.86
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Other Laws
Although we have already established above that SC-46 is
null and void for being violative of the 1987 Constitution, it
is our duty to still rule on the legality of SC-46 vis-a-vis
other pertinent laws, to serve as a guide for the
Government when executing service contracts involving
not only the Tafion Strait, but also other similar areas.
While the petitioners allege that SC-46 is in violation of
several laws, including international ones, their arguments
focus primarily on the protected status of the Taon Strait,
thus this Court will concentrate on those laws that pertain
particularly to the Taon Strait as a protected seascape.
The Taon Strait is a narrow passage of water bounded by
the islands of Cebu in the East and Negros in the West. It
harbors a rich biodiversity of marine life, including
endangered species of dolphins and whales. For this
reason, former President Fidel V. Ramos declared the
Taon Strait as a protected seascape in 1998 by virtue of
Proclamation No. 1234 -Declaring the Taon Strait situated
in the Provinces of Cebu, Negros Occidental and Negros
Oriental as a Protected Area pursuant to the NIP AS Act
and shall be known as Taon Strait Protected Seascape.
During former President Joseph E. Estrada's time, he also
constituted the Taon Strait Commission via Executive
Order No. 76 to ensure the optimum and sustained use of
the resources in that area without threatening its marine
life. He followed this with Executive Order No.
177,87 wherein he included the mayor of Negros Occidental
Municipality/City as a member of the Taon Strait
Commission, to represent the LGUs concerned. This
Commission, however, was subsequently abolished in
2002 by then President Gloria Macapagal-Arroyo, via
Executive Order No. 72.88
True to the constitutional policy that the "State shall
protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and
harmony of nature,"89 Congress enacted the NIP AS Act to
secure the perpetual existence of all native plants and
animals through the establishment of a comprehensive
system of integrated protected areas. These areas possess
common ecological values that were incorporated into a
holistic plan representative of our natural heritage. The
system encompasses outstandingly remarkable areas and

biologically important public lands that are habitats of rare

and endangered species of plants and animals,
biogeographic zones and related ecosystems, whether
terrestrial, wetland, or marine.90 It classifies and
administers all the designated protected areas to maintain
essential ecological processes and life-support systems, to
preserve genetic diversity, to ensure sustainable use of
resources found therein, and to maintain their natural
conditions to the greatest extent possible. 91 The following
categories of protected areas were established under the
NIPAS Act:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law,
conventions or international agreements which
the Philippine Government is a signatory.92
Under Section 4 of the NIP AS Act, a protected area refers
to portions of land and water, set aside due to their unique
physical and biological significance, managed to enhance
biological diversity and protected against human
exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was
set aside and declared a protected area under the
category of Protected Seascape. The NIP AS Act defines a
Protected Seascape to be an area of national significance
characterized by the harmonious interaction of man and
land while providing opportunities for public enjoyment
through recreation and tourism within the normal lifestyle
and economic activity of this areas; 93 thus a management
plan for each area must be designed to protect and
enhance the permanent preservation of its natural
conditions.94 Consistent with this endeavor is the
requirement that an Environmental Impact Assessment
(EIA) be made prior to undertaking any activity outside the
scope of the management plan. Unless an ECC under the
EIA system is obtained, no activity inconsistent with the
goals of the NIP AS Act shall be implemented.95
The Environmental Impact Statement System (EISS) was
established in 1978 under Presidential Decree No. 1586. It
prohibits any person, partnership or corporation from
undertaking or operating any declared environmentally
critical project or areas without first securing an ECC
issued by the President or his duly authorized
representative.96 Pursuant to the EISS, which called for the
proper
management
of
environmentally
critical

areas,97 Proclamation No. 214698 was enacted, identifying

the areas and types of projects to be considered as
environmentally critical and within the scope of the EISS,
while DENR Administrative Order No. 2003-30 provided for
its Implementing Rules and Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an
environmentally critical area as "an area delineated as
environmentally
sensitive
such
that
significant
environmental impacts are expected if certain types of
proposed projects or programs are located, developed, or
implemented in it";99 thus, before a project, which is "any
activity, regardless of scale or magnitude, which may have
significant impact on the environment," 100 is undertaken in
it, such project must undergo an EIA to evaluate and
predict the likely impacts of all its stages on the
environment.101An EIA is described in detail as follows:
h. Environmental Impact Assessment (EIA) - process that
involves evaluating and predicting the likely impacts of a
project (including cumulative impacts) on the environment
during construction, commissioning, operation and
abandonment. It also includes designing appropriate
preventive, mitigating and enhancement measures
addressing
these
consequences
to
protect
the
environment and the community's welfare. The process is
undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected
communities and other stakeholders.102
Under Proclamation No. 2146, the Taon Strait is an
environmentally critical area, having been declared as a
protected area in 1998; therefore, any activity outside the
scope of its management plan may only be implemented
pursuant to an ECC secured after undergoing an EIA to
determine the effects of such activity on its ecological
system.
The public respondents argue that they had complied with
the procedures in obtaining an ECC103 and that SC-46 falls
under the exceptions in Section 14 of the NIP AS Act, due
to the following reasons:
1) The Taon Strait is not a strict nature reserve
or natural park;
2) Exploration is only for the purpose of gathering
information on possible energy resources; and 3)
Measures are undertaken to ensure that the
exploration is being done with the least damage
to surrounding areas.104
We do not agree with the arguments raised by the public
respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment. Proposals for activities which are outside the scope of the
management plan for protected areas shall be subject to
an environmental impact assessment as required by law

before they are adopted, and the results thereof shall be

taken into consideration in the decision-making process.

The rationale for such additional requirements

incorporated m Section 2 of the NIP AS Act, to wit:

No actual implementation of such activities shall be

allowed without the required Environmental Compliance
Certificate (ECC) under the Philippine Environmental
Impact Assessment (EIA) system. In instances where such
activities are allowed to be undertaken, the proponent
shall plan and carry them out in such manner as will
minimize any adverse effects and the preventive and
remedial action when appropriate. The proponent shall be
liable for any damage due to lack of caution or
indiscretion.

SECTION 2. Declaration of Policy - Cognizant of the

profound impact of man's activities on all components of
the natural environment particularly the effect of
increasing population, resource exploitation and industrial
advancement and recognizing the critical importance of
protecting and maintaining the natural biological and
physical diversities of the environment notably on areas
with biologically unique features to sustain human life and
development, as well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino
people of present and future generations the perpetual
existence of all native plants and animals through the
establishment of a comprehensive system of integrated
protected areas within the classification of national park as
provided for in the Constitution.

SECTION 14. Survey for Energy Resources. - Consistent

with the policies declared in Section 2 hereof, protected
areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of
gathering information on energy resources and only if such
activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in
accordance with a program approved by the DENR, and
the result of such surveys shall be made available to the
public and submitted to the President for recommendation
to Congress. Any exploitation and utilization of energy
resources found within NIP AS areas shall be allowed only
through a law passed by Congress.
It is true that the restrictions found under the NIP AS Act
are not without exceptions. However, while an exploration
done for the purpose of surveying for energy resources is
allowed under Section 14 of the NIP AS Act, this does not
mean that it is exempt from the requirement to undergo
an EIA under Section 12. In Sotto v. Sotto, 105 this Court
explained why a statute should be construed as a whole:
A statute is passed as a whole and not in parts or sections
and is animated by one general purpose and intent.
Consequently each part or section should be construed in
connection with every other part or section and so as to
produce a harmonious whole. It is not proper to confine
the attention to the one section to be construed. It is
always an unsafe way of construing a statute or contract
to divide it by a process of etymological dissection, into
separate words, and then apply to each, thus separated
from its context, some particular definition given by
lexicographers, and then reconstruct the instrument upon
the basis of these definitions. An instrument must always
be construed as a whole, and the particular meaning to be
attached to any word or phrase is usually to be
ascertained from the context, the nature of the subject
treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or
framed the statute or constitution. x x x.
Surveying for energy resources under Section 14 is not an
exemption from complying with the EIA requirement in
Section 12; instead, Section 14 provides for additional
requisites before any exploration for energy resources may
be done in protected areas.

are

It is hereby recognized that these areas, although distinct

in features, possess common ecological values that may
be incorporated into a holistic plan representative of our
natural heritage; that effective administration of this area
is possible only through cooperation among national
government, local government and concerned private
organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of
biological diversity and sustainable development.
To this end, there is hereby established a National
Integrated Protected Areas System (NIPAS), which shall
encompass
outstandingly
remarkable
areas
and
biologically important public lands that are habitats of rare
and endangered species of plants and animals,
biogeographic zones and related ecosystems, whether
terrestrial, wetland or marine, all of which shall be
designated as "protected areas."
The public respondents themselves admitted that JAPEX
only started to secure an ECC prior to the second subphase of SC-46, which required the drilling of an oil
exploration well. This means that when the seismic
surveys were done in the Taon Strait, no such
environmental impact evaluation was done. Unless seismic
surveys are part of the management plan of the Taon
Strait, such surveys were done in violation of Section 12 of
the NIPAS Act and Section 4 of Presidential Decree No.
1586, which provides:
Section 4. Presidential Proclamation of Environmentally
Critical Areas and Projects. - The President of the
Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection
Council, by proclamation declare certain projects,
undertakings or areas in the country as environmentally
critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally
critical project or area without first securing an
Environmental Compliance Certificate issued by the
President or his duly authorized representative. For the
proper management of said critical project or area, the
President may by his proclamation reorganize such

government offices, agencies, institutions, corporations or

instrumentalities
including
the
re-alignment
of
government personnel, and their specific functions and
responsibilities.
For the same purpose as above, the Ministry of Human
Settlements shall: (a) prepare the proper land or water use
pattern for said critical project(s) or area(s); (b) establish
ambient environmental quality standards; (c) develop a
program of environmental enhancement or protective
measures against calamitous factors such as earthquakes,
floods, water erosion and others, and (d) perform such
other functions as may be directed by the President from
time to time.
The respondents' subsequent compliance with the EISS for
the second sub-phase of SC-46 cannot and will not cure
this violation. The following penalties are provided for
under Presidential Decree No. 1586 and the NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the
penalty involving violations of the ECC requirement:
Section 9. Penalty for Violation. - Any person, corporation
or partnership found violating Section 4 of this Decree, or
the terms and conditions in the issuance of the
Environmental Compliance Certificate, or of the standards,
rules and regulations issued by the National Environmental
Protection Council pursuant to this Decree shall be
punished by the suspension or cancellation of his/its
certificates and/or a fine in an amount not to exceed Fifty
Thousand Pesos (P50,000.00) for every violation thereof,
at the discretion of the National Environmental Protection
Council. (Emphasis supplied.)
Violations of the NIP AS Act entails the following fines
and/or imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any
rules and regulations issued by the Department pursuant
to this Act or whoever is found guilty by a competent court
of justice of any of the offenses in the preceding section
shall be fined in the amount of not less than Five thousand
pesos (P5,000) nor more than Five hundred thousand
pesos (P500,000), exclusive of the value of the thing
damaged or imprisonment for not less than one (1) year
but not more than six (6) years, or both, as determined by
the court: Provided, that, if the area requires rehabilitation
or restoration as determined by the court, the offender
shall be required to restore or compensate for the
restoration to the damages: Provided, further, that court
shall order the eviction of the offender from the land and
the forfeiture in favor of the Government of all minerals,
timber or any species collected or removed including all
equipment, devices and firearms used in connection
therewith, and any construction or improvement made
thereon by the offender. If the offender is an association or
corporation, the president or manager shall be directly
responsible for the act of his employees and laborers:
Provided,
finally,
that
the
DENR
may
impose
administrative fines and penalties consistent with this Act.
(Emphases supplied.) Moreover, SC-46 was not executed

for the mere purpose of gathering information on the

possible energy resources in the Taon Strait as it also
provides for the parties' rights and obligations relating to
extraction and petroleum production should oil in
commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration
and extraction may be authorized, the exploitation and
utilization of this energy resource in the present case may
be allowed only through a law passed by Congress, since
the Taon Strait is a NIPAS area. 106 Since there is no such
law specifically allowing oil exploration and/or extraction in
the Taon Strait, no energy resource exploitation and
utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no
longer necessary to discuss the other issues raised in
these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and
181527 are GRANTED, Service Contract No. 46 is hereby
declared NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential
Decree No. 1586.

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO,

all surnamed OPOSA, minors vs. THE HONORABLE
FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and
Natural Resources
The controversy has its genesis in Civil Case No. 90-77
which was filed before Branch 66 (Makati, Metro Manila) of
the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by
their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a
domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural
resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the
Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the
petitioners. 1 The
complaint 2 was
instituted
as
a
taxpayers' class suit 3 and alleges that the plaintiffs "are
all citizens of the Republic of the Philippines, taxpayers,
and entitled to the full benefit, use and enjoyment of the
natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation
of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The
minors further asseverate that they "represent their
generation
as
well
as
generations
yet
unborn." 4 Consequently, it is prayed for that judgment be
rendered:

. . . ordering defendant, his agents, representatives and

other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.

capable of unquestionable demonstration that the same

may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic
and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION

and granting the plaintiffs ". . . such other reliefs just and
equitable under the premises." 5
The complaint starts off with the general averments that
the Philippine archipelago of 7,100 islands has a land area
of thirty million (30,000,000) hectares and is endowed
with rich, lush and verdant rainforests in which varied, rare
and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool
which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent (54%)
for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other
uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of
environmental tragedies, such as (a) water shortages
resulting from drying up of the water table, otherwise
known as the "aquifer," as well as of rivers, brooks and
streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible
examples of which may be found in the island of Cebu and
the Municipality of Bacoor, Cavite, (c) massive erosion and
the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at
one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes,
(d) the endangering and extinction of the country's
unique, rare and varied flora and fauna, (e) the
disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life
leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity
of typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of
the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic
uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global
warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so

13. The adverse effects, disastrous consequences, serious

injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible.
As a matter of fact, the environmental damages
enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff
adults.
14. The continued allowance by defendant of TLA holders
to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who may
never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation
and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all
logging permits in the country.
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of
the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned
TLA's is manifestly contrary to the public policy enunciated
in the Philippine Environmental Policy.
21. Finally, defendant's act is contrary to the highest law
of humankind the natural law and violative of
plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy

in law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary
Factoran, Jr., filed a Motion to Dismiss the complaint based
on two (2) grounds, namely: (1) the plaintiffs have no
cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to
the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory
and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order
granting the aforementioned motion to dismiss. 7 In the
said order, not only was the defendant's claim that the
complaint states no cause of action against him and that it
raises a political question sustained, the respondent
Judge further ruled that the granting of the relief prayed
for would result in the impairment of contracts which is
prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely
abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their
children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil
Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of Presidential
Decree (P.D.) No. 1151 (Philippine Environmental Policy),
Section 16, Article II of the 1987 Constitution recognizing
the right of the people to a balanced and healthful
ecology, the concept of generational genocide in Criminal
Law and the concept of man's inalienable right to selfpreservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the

Constitution's non-impairment clause, petitioners maintain
that the same does not apply in this case because TLAs
are not contracts. They likewise submit that even if TLAs
may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when
the public interest so requires.
On the other hand, the respondents aver that the
petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which
any relief is provided by law. They see nothing in the
complaint but vague and nebulous allegations concerning
an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity
as parens patriae." Such allegations, according to them,
do not reveal a valid cause of action. They then reiterate
the theory that the question of whether logging should be
permitted in the country is a political question which
should be properly addressed to the executive or
legislative branches of Government. They therefore assert
that the petitioners' resources is not to file an action to
court, but to lobby before Congress for the passage of a
bill that would ban logging totally.
As to the matter of the cancellation of the TLAs,
respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA
remains effective for a certain period of time usually for
twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has
been found, after due notice and hearing, to have violated
the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No.
90-777 as a class suit. The original defendant and the
present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is
of common and general interest not just to several, but to
all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not
totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous
and representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for the
filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file
a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a

balanced and healthful ecology is concerned. Such a right,

as
hereinafter
expounded,
considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably
accessible
to
the
present
as
well
as
future
generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure
the protection of that right for the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues
raised and arguments adduced by the parties, We do not
hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been
issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads
as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions
based on unverified data. In fine, plaintiffs fail to state a
cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes
that the matter before it, being impressed with political
color and involving a matter of public policy, may not be
taken cognizance of by this Court without doing violence
to the sacred principle of "Separation of Powers" of the
three (3) co-equal branches of the Government.
The Court is likewise of the impression
that it cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to cancel
all existing timber license agreements in the country and
to cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements. For
to do otherwise would amount to "impairment of
contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the

plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal
right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness
among them.
While the right to a balanced and healthful ecology is to
be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution
for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear
of its framers that unless the rights to a balanced and
healthful ecology and to health are mandated as state
policies by the Constitution itself, thereby highlighting
their continuing importance and imposing upon the state a
solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when all
else would be lost not only for the present generation, but
also for those to come generations which stand to
inherit nothing but parched earth incapable of sustaining
life.
The right to a balanced and healthful ecology carries with
it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:Does this section mandate the State to
provide sanctions against all forms of pollution air,
water and noise pollution?

MR. AZCUNA:Yes, Madam President. The right to healthful

(sic) environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions
may be provided for impairment of environmental
balance. 12
The said right implies, among many other things, the
judicious management and conservation of the country's
forests.
Without such forests, the ecological or environmental
balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the
country's environment and natural resources, specifically
forest and grazing lands, mineral, resources, including
those in reservation and watershed areas, and lands of the
public domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order
to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the
population to the development and the use of the
country's natural resources, not only for the present
generation but for future generations as well. It is also the
policy of the state to recognize and apply a true value
system
including
social and
environmental cost
implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV,
Book IV of the Administrative Code of 1987, 15specifically
in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure,

for the benefit of the Filipino people, the full exploration
and development as well as the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources, consistent
with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the
environment and the objective of making the exploration,
development and utilization of such natural resources
equitably accessible to the different segments of the
present as well as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining
a sound ecological balance and protecting and enhancing
the quality of the environment." Section 2 of the same
Title, on the other hand, specifically speaks of the
mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment
and Natural Resources shall be primarily responsible for
the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional mandate
to control and supervise the exploration, development,
utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987
have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the
ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right"
of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D.
No. 1152 (Philippine Environment Code) were issued. The
former "declared a continuing policy of the State (a) to
create, develop, maintain and improve conditions under
which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of
an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and
guardian
of
the
environment
for
succeeding
generations." 17 The latter statute, on the other hand, gave
flesh to the said policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear

as the DENR's duty under its mandate and by virtue of

its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the
said right.

obstacle to the exercise of judicial power or the

impenetrable shield that protects executive and legislative
actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution
states that:

A denial or violation of that right by the other who has the

corelative duty or obligation to respect or protect the
same gives rise to a cause of action. Petitioners maintain
that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection
thereof requires that no further TLAs should be renewed or
granted.

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.

A cause of action is defined as:

Commenting on this provision in his book, Philippine

Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:

. . . an act or omission of one party in violation of the legal

right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in
violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss
based on the ground that the complaint fails to state a
cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in
the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in
such a case is: admitting such alleged facts to be true,
may the court render a valid judgment in accordance with
the
prayer
in
the
complaint? 20 InMilitante
vs.
21
Edrosolano, this Court laid down the rule that the
judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that
happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We
find the statements under the introductory affirmative
allegations, as well as the specific averments under the
sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On
the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however,
that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to
raise a political question. Policy formulation or
determination by the executive or legislative branches of
Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-avis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable

The first part of the authority represents the traditional

concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson,
this Court, noted:

23

Mr. Justice Cruz, now speaking for

In the case now before us, the jurisdictional objection

becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from revolving it under the expanded
jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of
the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found
in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease
and desist from receiving, accepting, processing, renewing
or approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are

amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in his
motion to dismiss the non-impairment clause. If he had
done so, he would have acted with utmost infidelity to the
Government by providing undue and unwarranted benefits
and advantages to the timber license holders because he
would have forever bound the Government to strictly
respect the said licenses according to their terms and
conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that
as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:

. . . Timber licenses, permits and license agreements are

the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by
the State to qualified entities, and do not vest in the latter
a permanent or irrevocable right to the particular
concession area and the forest products therein. They may
be validly amended, modified, replaced or rescinded by
the Chief Executive when national interests so require.
Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20
of Pres. Decree No. 705, as amended. Also, Tan v. Director
of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA
302].

. . . Provided, That when the national interest so requires,

the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .

Since timber licenses are not

impairment clause, which reads:

Needless to say, all licenses may thus be revoked or

rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of
the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources
to the end that public welfare is promoted. A timber
license is not a contract within the purview of the due
process clause; it is only a license or privilege, which can
be validly withdrawn whenever dictated by public interest
or public welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal,
granting it and the person to whom it is granted; neither is
it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable
rights, neither is it property or property rights (People vs.
Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. &
Co., Inc. vs. Deputy Executive Secretary: 26

contracts,

the

non-

Sec. 10. No law impairing, the obligation of contracts shall

be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the
same are contracts, the instant case does not involve a
law or even an executive issuance declaring the
cancellation or modification of existing timber licenses.
Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a
violation of the non-impairment clause. This is because by
its very nature and purpose, such as law could have only
been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people
to a balanced and healthful ecology, promoting their
health and enhancing the general welfare. In Abe vs.
Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government,
is not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of nonimpairment of obligations of contract is limited by the
exercise of the police power of the State, in the interest of
public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs.
New York, 29 quoted in Philippine American Life Insurance
Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and
not of public concern. The general rule is that both shall be
free of governmental interference. But neither property
rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to
the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the

private right is that of the public to regulate it in the

common interest.
In short, the non-impairment clause must yield to the
police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how
the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would
have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a
matter of right.

WHEREFORE, being impressed with merit, the instant

Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No.
90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the
holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.