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Republic of the Philippines clandestine relations with men, others went to work in different capacities, others assumed a life

SUPREME COURT unknown and disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in
EN BANC to Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. Subsequently,
the application, through stipulation of the parties, was made to include all of the women who
G.R. No. L-14639 March 25, 1919
were sent away from Manila to Davao and, as the same questions concerned them all, the
application will be considered as including them. The application set forth the salient facts, which
ZACARIAS VILLAVICENCIO, ET AL., petitioners, need not be repeated, and alleged that the women were illegally restrained of their liberty by
vs. Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
JUSTO LUKBAN, ET AL., respondents. and by certain unknown parties. The writ was made returnable before the full court. The city
fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should not be granted because the
Alfonso Mendoza for petitioners. petitioners were not proper parties, because the action should have been begun in the Court of
City Fiscal Diaz for respondents. First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did not
MALCOLM, J.: extend beyond the boundaries of the city of Manila. According to an exhibit attached to the
answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to
The annals of juridical history fail to reveal a case quite as remarkable as the one which this question of a member of the court, that these women had been sent out of Manila without their
application for habeas corpus submits for decision. While hardly to be expected to be met with in consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban,
this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco
if there is kept in the forefront of our minds the basic principles of popular government, and if we Sales, governor of the province of Davao, and Feliciano Yigo, an hacenderoof Davao, to bring
give expression to the paramount purpose for which the courts, as an independent power of before the court the persons therein named, alleged to be deprived of their liberty, on December
such a government, were constituted. The primary question is Shall the judiciary permit a 2, 1918.
government of the men instead of a government of laws to be set up in the Philippine Islands?

Before the date mentioned, seven of the women had returned to Manila at their own expense.
Omitting much extraneous matter, of no moment to these proceedings, but which might prove On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme
profitable reading for other departments of the government, the facts are these: The Mayor of Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of
the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the the persons in whose behalf the writ was issued were produced in court by the respondents. It
segregated district for women of ill repute, which had been permitted for a number of years in has been shown that three of those who had been able to come back to Manila through their
the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept own efforts, were notified by the police and the secret service to appear before the court. The
confined to their houses in the district by the police. Presumably, during this period, the city fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him
authorities quietly perfected arrangements with the Bureau of Labor for sending the women to when pleading to the original petition copied a telegram from the Mayor of the city of Manila to
Davao, Mindanao, as laborers; with some government office for the use of the coastguard the provincial governor of Davao and the answer thereto, and telegrams that had passed
cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, between the Director of Labor and the attorney for that Bureau then in Davao, and offered
about midnight of October 25, the police, acting pursuant to orders from the chief of police, certain affidavits showing that the women were contained with their life in Mindanao and did not
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill
hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that the order of the Supreme Court because the women had never been under his control, because
awaited their arrival. The women were given no opportunity to collect their belongings, and they were at liberty in the Province of Davao, and because they had married or signed contracts
apparently were under the impression that they were being taken to a police station for an as laborers. Respondent Yigo answered alleging that he did not have any of the women under
investigation. They had no knowledge that they were destined for a life in Mindanao. They had his control and that therefore it was impossible for him to obey the mandate. The court, after due
not been asked if they wished to depart from that region and had neither directly nor indirectly deliberation, on December 10, 1918, promulgated a second order, which related that the
given their consent to the deportation. The involuntary guests were received on board the respondents had not complied with the original order to the satisfaction of the court nor
steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. explained their failure to do so, and therefore directed that those of the women not in Manila be
The two steamers with their unwilling passengers sailed for Davao during the night of October brought before the court by respondents Lukban, Hohmann, Sales, and Yigo on January 13,
25. 1919, unless the women should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or unless the respondents should
The vessels reached their destination at Davao on October 29. The women were landed and demonstrate some other legal motives that made compliance impossible. It was further stated
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano that the question of whether the respondents were in contempt of court would later be decided
Yigo and Rafael Castillo. The governor and the hacendero Yigo, who appear as parties in the and the reasons for the order announced in the final decision.
case, had no previous notification that the women were prostitutes who had been expelled from
the city of Manila. The further happenings to these women and the serious charges growing out Before January 13, 1919, further testimony including that of a number of the women, of certain
of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of
Suffice it to say, generally, that some of the women married, others assumed more or less the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao
acting in the same capacity. On January 13, 1919, the respondents technically presented before
the Court the women who had returned to the city through their own efforts and eight others who said to exercise more power than any king or potentate, has no such arbitrary prerogative, either
had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, inherent or express. Much less, therefore, has the executive of a municipality, who acts within a
once again recounted the facts and further endeavored to account for all of the persons involved sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or
in the habeas corpus. In substance, it was stated that the respondents, through their even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the
representatives and agents, had succeeded in bringing from Davao with their consent eight presidents and chiefs of police of one thousand other municipalities of the Philippines have the
women; that eighty-one women were found in Davao who, on notice that if they desired they same privilege. If these officials can take to themselves such power, then any other official can
could return to Manila, transportation fee, renounced the right through sworn statements; that do the same. And if any official can exercise the power, then all persons would have just as
fifty-nine had already returned to Manila by other means, and that despite all efforts to find them much right to do so. And if a prostitute could be sent against her wishes and under no law from
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to one locality to another within the country, then officialdom can hold the same club over the head
submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of of any citizen.
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando
Ordax, members of the police force of the city of Manila, Feliciano Yigo, an hacendero of
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or
Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or
city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de
exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful
los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the
judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer
to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at
Large, 7.) No official, no matter how high, is above the law. The courts are the forum which
In the second order, the court promised to give the reasons for granting the writ of habeas functionate to safeguard individual liberty and to punish official transgressors. "The law," said
corpus in the final decision. We will now proceed to do so. Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy, and to
One fact, and one fact only, need be recalled these one hundred and seventy women were
observe the limitations which it imposes upon the exercise of the authority which it gives."
isolated from society, and then at night, without their consent and without any opportunity to
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same
consult with friends or to defend their rights, were forcibly hustled on board steamers for
high tribunal in another case, "that one man may be compelled to hold his life, or the means of
transportation to regions unknown. Despite the feeble attempt to prove that the women left
living, or any material right essential to the enjoyment of life, at the mere will of another, seems
voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
the police and the constabulary was deemed necessary and that these officers of the law chose
(Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ
the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to
of habeas corpus, and makes clear why we said in the very beginning that the primary question
refute and practically admitted by the respondents.
was whether the courts should permit a government of men or a government of laws to be
established in the Philippine Islands.
With this situation, a court would next expect to resolve the question By authority of what law
did the Mayor and the Chief of Police presume to act in deporting by duress these persons from
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen
Manila to another distant locality within the Philippine Islands? We turn to the statutes and we
are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
damages. It may still rest with the parties in interest to pursue such an action, but it was never
congress. The Governor-General can order the eviction of undesirable aliens after a hearing
intended effectively and promptly to meet any such situation as that now before us.
from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and punishment by a court of justice
of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
United States, who may have been convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the House of Refuge of women convicted
Any public officer not thereunto authorized by law or by regulations of a general
of being common prostitutes. Always a law! Even when the health authorities compel
character in force in the Philippines who shall banish any person to a place more than
vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is
two hundred kilometers distant from his domicile, except it be by virtue of the judgment
done pursuant to some law or order. But one can search in vain for any law, order, or regulation,
of a court, shall be punished by a fine of not less than three hundred and twenty-five
which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to
and not more than three thousand two hundred and fifty pesetas.
force citizens of the Philippine Islands and these women despite their being in a sense lepers
of society are nevertheless not chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens to change their domicile from Manila to another Any public officer not thereunto expressly authorized by law or by regulation of a
locality. On the contrary, Philippine penal law specifically punishes any public officer who, not general character in force in the Philippines who shall compel any person to change
being expressly authorized by law or regulation, compels any person to change his residence. his domicile or residence shall suffer the penalty of destierro and a fine of not less
than six hundred and twenty-five and not more than six thousand two hundred and
fifty pesetas. (Art. 211.)
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to
be found in the Bill of Rights of the Constitution. Under the American constitutional system,
liberty of abode is a principle so deeply imbedded in jurisprudence and considered so We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
elementary in nature as not even to require a constitutional sanction. Even the Governor- any public officer has violated this provision of law, these prosecutors will institute and press a
General of the Philippine Islands, even the President of the United States, who has often been criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case taking of these women from Manila by officials of that city, who handed them over to other
which will later be referred to "It would be a monstrous anomaly in the law if to an application parties, who deposited them in a distant region, deprived these women of freedom of locomotion
by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the just as effectively as if they had been imprisoned. Placed in Davao without either money or
confinement was a crime, and therefore might be continued indefinitely until the guilty party was personal belongings, they were prevented from exercising the liberty of going when and where
tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and were returned to Manila and released or until they freely and truly waived his right.
effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom. Any further rights of the parties are left untouched by decision on
Consider for a moment what an agreement with such a defense would mean. The chief
the writ, whose principal purpose is to set the individual at liberty.
executive of any municipality in the Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and then, when called upon to defend
Granted that habeas corpus is the proper remedy, respondents have raised three specific his official action, could calmly fold his hands and claim that the person was under no restraint
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in and that he, the official, had no jurisdiction over this other municipality. We believe the true
parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the principle should be that, if the respondent is within the jurisdiction of the court and has it in his
person in question are not restrained of their liberty by respondents. It was finally suggested that power to obey the order of the court and thus to undo the wrong that he has inflicted, he should
the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with
limits and that perforce they could not bring the women from Davao. the custody of a person before the application for the writ is no reason why the writ should not
issue. If the mayor and the chief of police, acting under no authority of law, could deport these
women from the city of Manila to Davao, the same officials must necessarily have the same
The first defense was not presented with any vigor by counsel. The petitioners were relatives
means to return them from Davao to Manila. The respondents, within the reach of process, may
and friends of the deportees. The way the expulsion was conducted by the city officials made it
not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile
impossible for the women to sign a petition for habeas corpus. It was consequently proper for
and to avow the act with impunity in the courts, while the person who has lost her birthright of
the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code
liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.
of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it
the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no It must be that some such question has heretofore been presented to the courts for decision.
application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
court. analogous case. Certain decisions of respectable courts are however very persuasive in nature.

The fiscal next contended that the writ should have been asked for in the Court of First Instance A question came before the Supreme Court of the State of Michigan at an early date as to
of Davao or should have been made returnable before that court. It is a general rule of good whether or not a writ of habeas corpus would issue from the Supreme Court to a person within
practice that, to avoid unnecessary expense and inconvenience, petitions for habeas the jurisdiction of the State to bring into the State a minor child under guardianship in the State,
corpus should be presented to the nearest judge of the court of first instance. But this is not a who has been and continues to be detained in another State. The membership of the Michigan
hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley,
judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. Campbell, and Christiancy, justices. On the question presented the court was equally divided.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley,
Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is J., one of the most distinguished American judges and law-writers, with whom concurred
dependent on the particular circumstances. In this instance it was not shown that the Court of Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was
First Instance of Davao was in session, or that the women had any means by which to advance predicated to a large extent on his conception of the English decisions, and since, as will
their plea before that court. On the other hand, it was shown that the petitioners with their hereafter appear, the English courts have taken a contrary view, only the following eloquent
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that passages from the opinion of Justice Cooley are quoted:
the case involved parties situated in different parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to
I have not yet seen sufficient reason to doubt the power of this court to issue the
accomplish its purpose, it must be taken cognizance of and decided immediately by the
present writ on the petition which was laid before us. . . .
appellate court. The failure of the superior court to consider the application and then to grant the
writ would have amounted to a denial of the benefits of the writ.
It would be strange indeed if, at this late day, after the eulogiums of six centuries and
a half have been expended upon the Magna Charta, and rivers of blood shed for its
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
establishment; after its many confirmations, until Coke could declare in his speech on
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
the petition of right that "Magna Charta was such a fellow that he will have no
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police
sovereign," and after the extension of its benefits and securities by the petition of right,
did not extend beyond the city limits. At first blush, this is a tenable position. On closer
bill of rights and habeas corpus acts, it should now be discovered that evasion of that
examination, acceptance of such dictum is found to be perversive of the first principles of the writ
great clause for the protection of personal liberty, which is the life and soul of the
of habeas corpus.
whole instrument, is so easy as is claimed here. If it is so, it is important that it be
determined without delay, that the legislature may apply the proper remedy, as I can
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The not doubt they would, on the subject being brought to their notice. . . .
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
The second proposition that the statutory provisions are confined to the case of with the cause of their detention. Davis, in his return to the writ, stated on oath that he had
imprisonment within the state seems to me to be based upon a misconception as to purchased the negroes as slaves in the city of Washington; that, as he believed, they were
the source of our jurisdiction. It was never the case in England that the court of king's removed beyond the District of Columbia before the service of the writ of habeas corpus, and
bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes that they were then beyond his control and out of his custody. The evidence tended to show that
were not passed to give the right, but to compel the observance of rights which Davis had removed the negroes because he suspected they would apply for a writ of habeas
existed. . . . corpus. The court held the return to be evasive and insufficient, and that Davis was bound to
produce the negroes, and Davis being present in court, and refusing to produce them, ordered
that he be committed to the custody of the marshall until he should produce the negroes, or be
The important fact to be observed in regard to the mode of procedure upon this writ is,
otherwise discharged in due course of law. The court afterwards ordered that Davis be released
that it is directed to and served upon, not the person confined, but his jailor. It does not
upon the production of two of the negroes, for one of the negroes had run away and been
reach the former except through the latter. The officer or person who serves it does
lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United
not unbar the prison doors, and set the prisoner free, but the court relieves him by
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly
compelling the oppressor to release his constraint. The whole force of the writ is spent
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
upon the respondent, and if he fails to obey it, the means to be resorted to for the
purposes of compulsion are fine and imprisonment. This is the ordinary mode of
affording relief, and if any other means are resorted to, they are only auxiliary to those We find, therefore, both on reason and authority, that no one of the defense offered by the
which are usual. The place of confinement is, therefore, not important to the relief, if respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
the guilty party is within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not increased by
There remains to be considered whether the respondent complied with the two orders of the
the confinement being beyond the limits of the state, except as greater distance may
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether
affect it. The important question is, where the power of control exercised? And I am
the contempt should be punished or be taken as purged.
aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
The order was dated November 4, 1918. The respondents were thus given ample time,
1000; Ex parte Young [1892], 50 Fed., 526.)
practically one month, to comply with the writ. As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November before sending a telegram to the provincial
The English courts have given careful consideration to the subject. Thus, a child had been taken governor of Davao. According to the response of the attorney for the Bureau of Labor to the
out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench telegram of his chief, there were then in Davao women who desired to return to Manila, but who
Division upon the application of the mother and her husband directing the defendant to produce should not be permitted to do so because of having contracted debts. The half-hearted effort
the child. The judge at chambers gave defendant until a certain date to produce the child, but he naturally resulted in none of the parties in question being brought before the court on the day
did not do so. His return stated that the child before the issuance of the writ had been handed named.
over by him to another; that it was no longer in his custody or control, and that it was impossible
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord
For the respondents to have fulfilled the court's order, three optional courses were open: (1)
Esher, M. R., said:
They could have produced the bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of sickness or infirmity those persons
A writ of habeas corpus was ordered to issue, and was issued on January 22. That could not safely be brought before the court; or (3) they could have presented affidavits to show
writ commanded the defendant to have the body of the child before a judge in that the parties in question or their attorney waived the right to be present. (Code of Criminal
chambers at the Royal Courts of Justice immediately after the receipt of the writ, Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ
together with the cause of her being taken and detained. That is a command to bring was granted; they did not show impossibility of performance; and they did not present writings
the child before the judge and must be obeyed, unless some lawful reason can be that waived the right to be present by those interested. Instead a few stereotyped affidavits
shown to excuse the nonproduction of the child. If it could be shown that by reason of purporting to show that the women were contended with their life in Davao, some of which have
his having lawfully parted with the possession of the child before the issuing of the since been repudiated by the signers, were appended to the return. That through ordinary
writ, the defendant had no longer power to produce the child, that might be an answer; diligence a considerable number of the women, at least sixty, could have been brought back to
but in the absence of any lawful reason he is bound to produce the child, and, if he Manila is demonstrated to be found in the municipality of Davao, and that about this number
does not, he is in contempt of the Court for not obeying the writ without lawful excuse. either returned at their own expense or were produced at the second hearing by the
Many efforts have been made in argument to shift the question of contempt to some respondents.
anterior period for the purpose of showing that what was done at some time prior to
the writ cannot be a contempt. But the question is not as to what was done before the
The court, at the time the return to its first order was made, would have been warranted
issue of the writ. The question is whether there has been a contempt in disobeying the
summarily in finding the respondents guilty of contempt of court, and in sending them to jail until
writ it was issued by not producing the child in obedience to its commands. (The
they obeyed the order. Their excuses for the non-production of the persons were far from
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish
sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate
case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo,
with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case,
Gossage's Case [1890], 24 Q. B. D., 283.)
supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the consequences;
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to and we said that he was bound to use every effort to get the child back; that he must do much
the defendant to have before the circuit court of the District of Columbia three colored persons, more than write letters for the purpose; that he must advertise in America, and even if necessary
himself go after the child, and do everything that mortal man could do in the matter; and that the It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
court would only accept clear proof of an absolute impossibility by way of excuse." In other relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent
words, the return did not show that every possible effort to produce the women was made by the Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many
respondents. That the court forebore at this time to take drastic action was because it did not thousands of pesos, and in addition to deal with him as for a contempt. Some members of the
wish to see presented to the public gaze the spectacle of a clash between executive officials and court are inclined to this stern view. It would also be possible to find that since respondent
the judiciary, and because it desired to give the respondents another chance to demonstrate Lukban did comply substantially with the second order of the court, he has purged his contempt
their good faith and to mitigate their wrong. of the first order. Some members of the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the administration of justice to such an
In response to the second order of the court, the respondents appear to have become more
extent that his later activity may be considered only as extenuating his conduct. A nominal fine
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
will at once command such respect without being unduly oppressive such an amount is P100.
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading of the record might In resume as before stated, no further action on the writ of habeas corpus is necessary. The
reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in
substantial compliance with it. Our finding to this effect may be influenced somewhat by our contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office
sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The
in Davao, it should receive an executive investigation. If any particular individual is still restrained motion of the fiscal of the city of Manila to strike from the record the Replica al Memorandum de
of her liberty, it can be made the object of separate habeas corpus proceedings. los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So
Since the writ has already been granted, and since we find a substantial compliance with it,
nothing further in this connection remains to be done. In concluding this tedious and disagreeable task, may we not be permitted to express the hope
that this decision may serve to bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and
Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the Arellano, C.J., Avancea and Moir, JJ., concur.
attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Johnson, and Street, JJ., concur in the result.
Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must falter or fail. Nevertheless
when one is commanded to produce a certain person and does not do so, and does not offer a
valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined. An officer's failure to produce the body
of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888],
99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections,
we cannot say that any of the respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann,
Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law
of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating
circumstance. The hacendero Yigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city Republic of the Philippines
government. Finding him innocent of any disrespect to the court, his counter-motion to strike SUPREME COURT
from the record the memorandum of attorney for the petitioners, which brings him into this Manila
undesirable position, must be granted. When all is said and done, as far as this record discloses,
the official who was primarily responsible for the unlawful deportation, who ordered the police to
accomplish the same, who made arrangements for the steamers and the constabulary, who EN BANC
conducted the negotiations with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the unfortunate women to Manila, G.R. No. L-2662 March 26, 1949
was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by
the court was only tardily and reluctantly acknowledged.
SHIGENORI KURODA, petitioner, In accordance with the generally accepted principle of international law of the present day
vs. including the Hague Convention the Geneva Convention and significant precedents of
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel international jurisprudence established by the United Nation all those person military or civilian
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, who have been guilty of planning preparing or waging a war of aggression and of the
Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents. commission of crimes and offenses consequential and incidental thereto in violation of the laws
and customs of war, of humanity and civilization are held accountable therefor. Consequently in
the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
has acted in conformity with the generally accepted and policies of international law which are
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
part of the our Constitution.
Hussey for respondents.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during a period
War is not ended simply because hostilities have ceased. After cessation of armed
covering 19433 and 19444 who is now charged before a military Commission convened by the
hostilities incident of war may remain pending which should be disposed of as in time
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and
of war. An importance incident to a conduct of war is the adoption of measure by the
failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
military command not only to repel and defeat the enemies but to seize and subject to
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
disciplinary measure those enemies who in their attempt to thwart or impede our
in violation of the laws and customs of war" comes before this Court seeking to establish the
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct.,
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
2.) Indeed the power to create a military commission for the trial and punishment of
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
war criminals is an aspect of waging war. And in the language of a writer a military
petitioner's case before the Military Commission and to permanently prohibit respondents from
commission has jurisdiction so long as a technical state of war continues. This
proceeding with the case of petitioners.
includes the period of an armistice or military occupation up to the effective of a treaty
of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals
In support of his case petitioner tenders the following principal arguments. by Military Tribunals, America Bar Association Journal June, 1944.)

First. "That Executive Order No. 68 is illegal on the ground that it violates not only the Consequently, the President as Commander in Chief is fully empowered to consummate this
provision of our constitutional law but also our local laws to say nothing of the fact (that) the unfinished aspect of war namely the trial and punishment of war criminal through the issuance
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and and enforcement of Executive Order No. 68.
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on
law, national and international." Hence petitioner argues "That in view off the fact that this
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
commission has been empanelled by virtue of an unconstitutional law an illegal order this
acts committed in violation of the Hague Convention and the Geneva Convention because the
commission is without jurisdiction to try herein petitioner."
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
Second. That the participation in the prosecution of the case against petitioner before the based on the generally accepted principals of international law. In facts these rules and
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert principles were accepted by the two belligerent nation the United State and Japan who were
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is signatories to the two Convention, Such rule and principles therefore form part of the law of our
a diminution of our personality as an independent state and their appointment as prosecutor are nation even if the Philippines was not a signatory to the conventions embodying them for our
a violation of our Constitution for the reason that they are not qualified to practice law in the Constitution has been deliberately general and extensive in its scope and is not confined to the
Philippines. recognition of rule and principle of international law as continued inn treaties to which our
government may have been or shall be a signatory.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case. Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound together
with the United States and with Japan to the right and obligation contained in the treaties
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and between the belligerent countries. These rights and obligation were not erased by our
regulation governing the trial of accused war criminals, was issued by the President of the assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
right on our own of trying and punishing those who committed crimes against crimes against our
constitutional. Article 2 of our Constitution provides in its section 3, that people. In this connection it is well to remember what we have said in the case of Laurel vs.
Misa (76 Phil., 372):
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation. . . . The change of our form government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed during
then Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were
a Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In facts it is common in military Republic of the Philippines
tribunals that counsel for the parties are usually military personnel who are neither attorneys nor SUPREME COURT
even possessed of legal training. Manila

Secondly the appointment of the two American attorneys is not violative of our nation EN BANC
sovereignty. It is only fair and proper that United States, which has submitted the vindication of
crimes against her government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any relinquishment of G.R. No. L-5 September 17, 1945
sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of CO KIM CHAM (alias CO KIM CHAM), petitioner,
comity is to allow them representation in said trials. vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of
Alleging that the United State is not a party in interest in the case petitioner challenges the Manila, respondents.1
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes with Marcelino Lontok for petitioner.
which petitioner stands charged before the Military Commission. It can be considered a privilege P. A. Revilla for respondent Valdez Tan Keh.
for our Republic that a leader nation should submit the vindication of the honor of its citizens and Respondent Judge Dizon in his own behalf.
its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military This petition for mandamus in which petitioner prays that the respondent judge of the lower court
commission. be ordered to continue the proceedings in civil case No. 3012 of said court, which were initiated
under the regime of the so-called Republic of the Philippines established during the Japanese
military occupation of these Islands.
For all the foregoing the petition is denied with costs de oficio.

The respondent judge refused to take cognizance of and continue the proceedings in said case
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur on the ground that the proclamation issued on October 23, 1944, by General Douglas MacArthur
had the effect of invalidating and nullifying all judicial proceedings and judgements of the court of
the Philippines under the Philippine Executive Commission and the Republic of the Philippines
established during the Japanese military occupation, and that, furthermore, the lower courts
have no jurisdiction to take cognizance of and continue judicial proceedings pending in the
courts of the defunct Republic of the Philippines in the absence of an enabling law granting such
authority. And the same respondent, in his answer and memorandum filed in this Court,
contends that the government established in the Philippines during the Japanese occupation
were no de facto governments.

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next
day their Commander in Chief proclaimed "the Military Administration under law over the districts
occupied by the Army." In said proclamation, it was also provided that "so far as the Military
Administration permits, all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be effective for the time being as in the past," and "all public the proclamation issued on October 23, 1944, by General Douglas MacArthur, Commander in
officials shall remain in their present posts and carry on faithfully their duties as before." Chief of the United States Army, in which he declared "that all laws, regulations and processes
of any of the government in the Philippines than that of the said Commonwealth are null and
void and without legal effect in areas of the Philippines free of enemy occupation and control,"
A civil government or central administration organization under the name of "Philippine
has invalidated all judgements and judicial acts and proceedings of the said courts; and (3) If the
Executive Commission was organized by Order No. 1 issued on January 23, 1942, by the
said judicial acts and proceedings have not been invalidated by said proclamation, whether the
Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas, who was
present courts of the Commonwealth, which were the same court existing prior to, and continued
appointed Chairman thereof, was instructed to proceed to the immediate coordination of the
during, the Japanese military occupation of the Philippines, may continue those proceedings
existing central administrative organs and judicial courts, based upon what had existed
pending in said courts at the time the Philippines were reoccupied and liberated by the United
therefore, with approval of the said Commander in Chief, who was to exercise jurisdiction over
States and Filipino forces, and the Commonwealth of the Philippines were reestablished in the
judicial courts.

The Chairman of the Executive Commission, as head of the central administrative organization,
We shall now proceed to consider the first question, that is, whether or not under the rules of
issued Executive Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in
international law the judicial acts and proceedings of the courts established in the Philippines
which the Supreme Court, Court of Appeals, Courts of First Instance, and the justices of the
under the Philippine Executive Commission and the Republic of the Philippines were good and
peace and municipal courts under the Commonwealth were continued with the same jurisdiction,
valid and remained good and valid even after the liberation or reoccupation of the Philippines by
in conformity with the instructions given to the said Chairman of the Executive Commission by
the United States and Filipino forces.
the Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of
February 20, 1942, concerning basic principles to be observed by the Philippine Executive
Commission in exercising legislative, executive and judicial powers. Section 1 of said Order 1. It is a legal truism in political and international law that all acts and proceedings of the
provided that "activities of the administration organs and judicial courts in the Philippines shall be legislative, executive, and judicial departments of a de facto government are good and valid. The
based upon the existing statutes, orders, ordinances and customs. . . ." question to be determined is whether or not the governments established in these Islands under
the names of the Philippine Executive Commission and Republic of the Philippines during the
Japanese military occupation or regime were de facto governments. If they were, the judicial
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
acts and proceedings of those governments remain good and valid even after the liberation or
substantial change was effected thereby in the organization and jurisdiction of the different
reoccupation of the Philippines by the American and Filipino forces.
courts that functioned during the Philippine Executive Commission, and in the laws they
administered and enforced.
There are several kinds of de facto governments. The first, or government de facto in a proper
legal sense, is that government that gets possession and control of, or usurps, by force or by the
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur
voice of the majority, the rightful legal governments and maintains itself against the will of the
issued a proclamation to the People of the Philippines which declared:
latter, such as the government of England under the Commonwealth, first by Parliament and
later by Cromwell as Protector. The second is that which is established and maintained by
1. That the Government of the Commonwealth of the Philippines is, subject to the military forces who invade and occupy a territory of the enemy in the course of war, and which is
supreme authority of the Government of the United States, the sole and only denominated a government of paramount force, as the cases of Castine, in Maine, which was
government having legal and valid jurisdiction over the people in areas of the reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war
Philippines free of enemy occupation and control; with Mexico, by the troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise in insurrection against the
parent state of such as the government of the Southern Confederacy in revolt not concerned in
2. That the laws now existing on the statute books of the Commonwealth of the the present case with the first kind, but only with the second and third kinds of de
Philippines and the regulations promulgated pursuant thereto are in full force and facto governments.
effect and legally binding upon the people in areas of the Philippines free of enemy
occupation and control; and
Speaking of government "de facto" of the second kind, the Supreme Court of the United States,
in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another description of
3. That all laws, regulations and processes of any other government in the Philippines
government, called also by publicists a government de facto, but which might, perhaps, be more
than that of the said Commonwealth are null and void and without legal effect in areas aptly denominated a government of paramount force. Its distinguishing characteristics are (1),
of the Philippines free of enemy occupation and control. that its existence is maintained by active military power with the territories, and against the
rightful authority of an established and lawful government; and (2), that while it exists it
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in
General MacArthur, on behalf of the Government of the United States, solemnly declared "the submission to such force, do not become responsible, or wrongdoers, for those acts, though not
full powers and responsibilities under the Constitution restored to the Commonwealth whose warranted by the laws of the rightful government. Actual governments of this sort are established
seat is here established as provided by law." over districts differing greatly in extent and conditions. They are usually administered directly by
military authority, but they may be administered, also, civil authority, supported more or less
directly by military force. . . . One example of this sort of government is found in the case of
In the light of these facts and events of contemporary history, the principal questions to be Castine, in Mine, reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton,
resolved in the present case may be reduced to the following:(1) Whether the judicial acts and 253). A like example is found in the case of Tampico, occupied during the war with Mexico, by
proceedings of the court existing in the Philippines under the Philippine Executive Commission the troops of the United States . . . Fleming vs. Page (9 Howard, 614). These were cases of
and the Republic of the Philippines were good and valid and remained so even after the
liberation or reoccupation of the Philippines by the United States and Filipino forces; (2)Whether
temporary possessions of territory by lawfull and regular governments at war with the country of man and man under the supervision of the American Commander in Chief." (Richardson's
which the territory so possessed was part." Messages and Papers of President, X, p. 209.)

The powers and duties of de facto governments of this description are regulated in Section III of As to "de facto" government of the third kind, the Supreme Court of the United States, in the
the Hague Conventions of 1907, which is a revision of the provisions of the Hague Conventions same case of Thorington vs. Smith, supra, recognized the government set up by the
of 1899 on the same subject of said Section III provides "the authority of the legislative power Confederate States as a de factogovernment. In that case, it was held that "the central
having actually passed into the hands of the occupant, the latter shall take steps in his power to government established for the insurgent States differed from the temporary governments at
reestablish and insure, as far as possible, public order and safety, while respecting, unless Castine and Tampico in the circumstance that its authority did no originate in lawful acts of
absolutely prevented, the laws in force in the country." regular war; but it was not, on the account, less actual or less supreme. And we think that it must
be classed among the governments of which these are examples. . . .
According to the precepts of the Hague Conventions, as the belligerent occupant has the right
and is burdened with the duty to insure public order and safety during his military occupation, he In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States,
possesses all the powers of a de factogovernment, and he can suspended the old laws and discussing the validity of the acts of the Confederate States, said: "The same general form of
promulgate new ones and make such changes in the old as he may see fit, but he is enjoined to government, the same general laws for the administration of justice and protection of private
respect, unless absolutely prevented by the circumstances prevailing in the occupied territory, rights, which had existed in the States prior to the rebellion, remained during its continuance and
the municipal laws in force in the country, that is, those laws which enforce public order and afterwards. As far as the Acts of the States do not impair or tend to impair the supremacy of the
regulate social and commercial life of the country. On the other hand, laws of a political nature or national authority, or the just rights of citizens under the Constitution, they are, in general, to be
affecting political relations, such as, among others, the right of assembly, the right to bear arms, treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657):
the freedom of the press, and the right to travel freely in the territory occupied, are considered as "The existence of a state of insurrection and war did not loosen the bonds of society, or do away
suspended or in abeyance during the military occupation. Although the local and civil with civil government or the regular administration of the laws. Order was to be preserved, police
administration of justice is suspended as a matter of course as soon as a country is militarily regulations maintained, crime prosecuted, property protected, contracts enforced, marriages
occupied, it is not usual for the invader to take the whole administration into his own hands. In celebrated, estates settled, and the transfer and descent of property regulated, precisely as in
practice, the local ordinary tribunals are authorized to continue administering justice; and judges the time of peace. No one, that we are aware of, seriously questions the validity of judicial or
and other judicial officers are kept in their posts if they accept the authority of the belligerent legislative Acts in the insurrectionary States touching these and kindered subjects, where they
occupant or are required to continue in their positions under the supervision of the military or civil were not hostile in their purpose or mode of enforcement to the authority of the National
authorities appointed, by the Commander in Chief of the occupant. These principles and practice Government, and did not impair the rights of citizens under the Constitution'. The same doctrine
have the sanction of all publicists who have considered the subject, and have been asserted by has been asserted in numerous other cases."
the Supreme Court and applied by the President of the United States.
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what
The doctrine upon this subject is thus summed up by Halleck, in his work on International Law occured or was done in respect of such matters under the authority of the laws of these local de
(Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy facto governments should not be disregarded or held to be invalid merely because those
while in its military possession, is one of the incidents of war, and flows directly from the right to governments were organized in hostility to the Union established by the national Constitution;
conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, this, because the existence of war between the United States and the Confederate States did
for authority to establish a government for the territory of the enemy in his possession, during its not relieve those who are within the insurrectionary lines from the necessity of civil obedience,
military occupation, nor for the rules by which the powers of such government are regulated and nor destroy the bonds of society nor do away with civil government or the regular administration
limited. Such authority and such rules are derived directly from the laws war, as established by of the laws, and because transactions in the ordinary course of civil society as organized within
the usage of the of the world, and confirmed by the writings of publicists and decisions of courts the enemy's territory although they may have indirectly or remotely promoted the ends of the de
in fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws facto or unlawful government organized to effect a dissolution of the Union, were without blame
which regulate private rights, continue in force during military occupation, excepts so far as they 'except when proved to have been entered into with actual intent to further invasion or
are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of insurrection:'" and "That judicial and legislative acts in the respective states composing the so-
a de facto government, and can at his pleasure either change the existing laws or make new called Confederate States should be respected by the courts if they were not hostile in their
ones." purpose or mode of enforcement to the authority of the National Government, and did not impair
the rights of citizens under the Constitution."
And applying the principles for the exercise of military authority in an occupied territory, which
were later embodied in the said Hague Conventions, President McKinley, in his executive order In view of the foregoing, it is evident that the Philippine Executive Commission, which was
to the Secretary of War of May 19,1898, relating to the occupation of the Philippines by United organized by Order No. 1, issued on January 23, 1942, by the Commander of the Japanese
States forces, said in part: "Though the powers of the military occupant are absolute and forces, was a civil government established by the military forces of occupation and therefore
supreme, and immediately operate upon the political condition of the inhabitants, the municipal a de facto government of the second kind. It was not different from the government established
laws of the conquered territory, such as affect private rights of person and property and provide by the British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says,
for the punishment of crime, are considered as continuing in force, so far as they are compatible "The government established over an enemy's territory during the military occupation may
with the new order of things, until they are suspended or superseded by the occupying exercise all the powers given by the laws of war to the conqueror over the conquered, and is
belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and subject to all restrictions which that code imposes. It is of little consequence whether such
to be administered by the ordinary tribunals, substantially as they were before the occupation. government be called a military or civil government. Its character is the same and the source of
This enlightened practice is, so far as possible, to be adhered to on the present occasion. The its authority the same. In either case it is a government imposed by the laws of war, and so far it
judges and the other officials connected with the administration of justice may, if they accept the concerns the inhabitants of such territory or the rest of the world, those laws alone determine the
authority of the United States, continue to administer the ordinary law of the land as between legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and not by the same principles as that of a territory occupied by the hostile army of an enemy at regular war
Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the greater part of with the legitimate power.
Prussia, he retained the existing administration under the general direction of a french official
(Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on
The governments by the Philippine Executive Commission and the Republic of the Philippines
invading France, authorized the local authorities to continue the exercise of their functions,
during the Japanese military occupation being de facto governments, it necessarily follows that
apparently without appointing an English superior. (Wellington Despatches, XI, 307.). The
the judicial acts and proceedings of the courts of justice of those governments, which are not of
Germans, on the other hand, when they invaded France in 1870, appointed their own officials, at
a political complexion, were good and valid, and, by virtue of the well-known principle of
least in Alsace and Lorraine, in every department of administration and of every rank. (Calvo,
postliminy (postliminium) in international law, remained good and valid after the liberation or
pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
reoccupation of the Philippines by the American and Filipino forces under the leadership of
General Douglas MacArthur. According to that well-known principle in international law, the fact
The so-called Republic of the Philippines, apparently established and organized as a sovereign that a territory which has been occupied by an enemy comes again into the power of its
state independent from any other government by the Filipino people, was, in truth and reality, a legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects
government established by the belligerent occupant or the Japanese forces of occupation. It was of acts done by an invader, which for one reason or another it is within his competence to do.
of the same character as the Philippine Executive Commission, and the ultimate source of its Thus judicial acts done under his control, when they are not of a political complexion,
authority was the same the Japanese military authority and government. As General administrative acts so done, to the extent that they take effect during the continuance of his
MacArthur stated in his proclamation of October 23, 1944, a portion of which has been already control, and the various acts done during the same time by private persons under the sanction of
quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' municipal law, remain good. Were it otherwise, the whole social life of a community would be
was established on October 14, 1943, based upon neither the free expression of the people's paralyzed by an invasion; and as between the state and the individuals the evil would be
will nor the sanction of the Government of the United States." Japan had no legal power to grant scarcely less, it would be hard for example that payment of taxes made under duress should
independence to the Philippines or transfer the sovereignty of the United States to, or recognize be ignored, and it would be contrary to the general interest that the sentences passed upon
the latent sovereignty of, the Filipino people, before its military occupation and possession of the criminals should be annulled by the disappearance of the intrusive government ." (Hall,
Islands had matured into an absolute and permanent dominion or sovereignty by a treaty of International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been
peace or other means recognized in the law of nations. For it is a well-established doctrine in each an incident of the same war as in the present case, postliminy applies, even though the
International Law, recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits occupant has acted as conqueror and for the time substituted his own sovereignty as the
compulsion of the population of the occupied territory to swear allegiance to the hostile power), Japanese intended to do apparently in granting independence to the Philippines and
the belligerent occupation, being essentially provisional, does not serve to transfer sovereignty establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)
over the territory controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of Sugar vs. Boyle, 9
That not only judicial but also legislative acts of de facto governments, which are not of a political
Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
complexion, are and remain valid after reoccupation of a territory occupied by a belligerent
Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a
occupant, is confirmed by the Proclamation issued by General Douglas MacArthur on October
scheme contrived by Japan to delude the Filipino people into believing in the apparent
23, 1944, which declares null and void all laws, regulations and processes of the governments
magnanimity of the Japanese gesture of transferring or turning over the rights of government
established in the Philippines during the Japanese occupation, for it would not have been
into the hands of Filipinos. It was established under the mistaken belief that by doing so, Japan
necessary for said proclamation to abrogate them if they were invalid ab initio.
would secure the cooperation or at least the neutrality of the Filipino people in her war against
the United States and other allied nations.
2. The second question hinges upon the interpretation of the phrase "processes of any other
government" as used in the above-quoted proclamation of General Douglas MacArthur of
Indeed, even if the Republic of the Philippines had been established by the free will of the
October 23, 1944 that is, whether it was the intention of the Commander in Chief of the
Filipino who, taking advantage of the withdrawal of the American forces from the Islands, and
American Forces to annul and void thereby all judgments and judicial proceedings of the courts
the occupation thereof by the Japanese forces of invasion, had organized an independent
established in the Philippines during the Japanese military occupation.
government under the name with the support and backing of Japan, such government would
have been considered as one established by the Filipinos in insurrection or rebellion against the
parent state or the Unite States. And as such, it would have been a de facto government similar The phrase "processes of any other government" is broad and may refer not only to the judicial
to that organized by the confederate states during the war of secession and recognized as such processes, but also to administrative or legislative, as well as constitutional, processes of the
by the by the Supreme Court of the United States in numerous cases, notably those of Republic of the Philippines or other governmental agencies established in the Islands during the
Thorington vs. Smith, Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the Japanese occupation. Taking into consideration the fact that, as above indicated, according to
short-lived government established by the Filipino insurgents in the Island of Cebu during the the well-known principles of international law all judgements and judicial proceedings, which are
Spanish-American war, recognized as a de facto government by the Supreme Court of the not of a political complexion, of the de facto governments during the Japanese military
United States in the case of McCleod vs. United States (299 U. S., 416). According to the facts occupation were good and valid before and remained so after the occupied territory had come
in the last-named case, the Spanish forces evacuated the Island of Cebu on December 25, again into the power of the titular sovereign, it should be presumed that it was not, and could not
1898, having first appointed a provisional government, and shortly afterwards, the Filipinos, have been, the intention of General Douglas MacArthur, in using the phrase "processes of any
formerly in insurrection against Spain, took possession of the Islands and established a republic, other government" in said proclamation, to refer to judicial processes, in violation of said
governing the Islands until possession thereof was surrendered to the United States on February principles of international law. The only reasonable construction of the said phrase is that it
22, 1898. And the said Supreme Court held in that case that "such government was of the class refers to governmental processes other than judicial processes of court proceedings, for
of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also according to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a
by publicists a government de facto, but which might, perhaps, be more aptly denominated a statute ought never to be construed to violate the law of nations if any other possible
government of paramount force . . '." That is to say, that the government of a country in construction remains."
possession of belligerent forces in insurrection or rebellion against the parent state, rests upon
It is true that the commanding general of a belligerent army of occupation, as an agent of his Government in 1945; while almost all, if not all, appealed cases pending on March 10, 1945, in
government, may not unlawfully suspend existing laws and promulgate new ones in the the Court of Appeals were from judgments rendered by the Court of First Instance during the
occupied territory, if and when the exigencies of the military occupation demand such action. But Japanese regime.
even assuming that, under the law of nations, the legislative power of a commander in chief of
military forces who liberates or reoccupies his own territory which has been occupied by an
The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover
enemy, during the military and before the restoration of the civil regime, is as broad as that of the
when it is said that an occupier's acts are valid and under international law should not be
commander in chief of the military forces of invasion and occupation (although the exigencies of
abrogated by the subsequent conqueror, it must be remembered that no crucial instances exist
military reoccupation are evidently less than those of occupation), it is to be presumed that
to show that if his acts should be reversed, any international wrong would be committed. What
General Douglas MacArthur, who was acting as an agent or a representative of the Government
does happen is that most matters are allowed to stand by the restored government, but the
and the President of the United States, constitutional commander in chief of the United States
matter can hardly be put further than this." (Wheaton, International Law, War, 7th English edition
Army, did not intend to act against the principles of the law of nations asserted by the Supreme
of 1944, p. 245.) And from this quotion the respondent judge "draws the conclusion that whether
Court of the United States from the early period of its existence, applied by the Presidents of the
the acts of the occupant should be considered valid or not, is a question that is up to the
United States, and later embodied in the Hague Conventions of 1907, as above indicated. It is
restored government to decide; that there is no rule of international law that denies to the
not to be presumed that General Douglas MacArthur, who enjoined in the same proclamation of
restored government to decide; that there is no rule of international law that denies to the
October 23, 1944, "upon the loyal citizens of the Philippines full respect and obedience to the
restored government the right of exercise its discretion on the matter, imposing upon it in its
Constitution of the Commonwealth of the Philippines," should not only reverse the international
stead the obligation of recognizing and enforcing the acts of the overthrown government."
policy and practice of his own government, but also disregard in the same breath the provisions
of section 3, Article II, of our Constitution, which provides that "The Philippines renounces war as
an instrument of national policy, and adopts the generally accepted principles of international law There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the
as part of the law of the Nation." occupier, such as the laws, regulations and processes other than judicial of the government
established by the belligerent occupant. But in view of the fact that the proclamation uses the
words "processes of any other government" and not "judicial processes" prisely, it is not
Moreover, from a contrary construction great inconvenience and public hardship would result,
necessary to determine whether or not General Douglas MacArthur had power to annul and set
and great public interests would be endangered and sacrificed, for disputes or suits already
aside all judgments and proceedings of the courts during the Japanese occupation. The
adjudged would have to be again settled accrued or vested rights nullified, sentences passed on
question to be determined is whether or not it was his intention, as representative of the
criminals set aside, and criminals might easily become immune for evidence against them may
President of the United States, to avoid or nullify them. If the proclamation had, expressly or by
have already disappeared or be no longer available, especially now that almost all court records
necessary implication, declared null and void the judicial processes of any other government, it
in the Philippines have been destroyed by fire as a consequence of the war. And it is another
would be necessary for this court to decide in the present case whether or not General Douglas
well-established rule of statutory construction that where great inconvenience will result from a
MacArthur had authority to declare them null and void. But the proclamation did not so provide,
particular construction, or great public interests would be endangered or sacrificed, or great
undoubtedly because the author thereof was fully aware of the limitations of his powers as
mischief done, such construction is to be avoided, or the court ought to presume that such
Commander in Chief of Military Forces of liberation or subsequent conqueror.
construction was not intended by the makers of the law, unless required by clear and
unequivocal words. (25 R. C. L., pp. 1025, 1027.)
Not only the Hague Regulations, but also the principles of international law, as they result from
the usages established between civilized nations, the laws of humanity and the requirements of
The mere conception or thought of possibility that the titular sovereign or his representatives
the public of conscience, constitute or from the law of nations. (Preamble of the Hague
who reoccupies a territory occupied by an enemy, may set aside or annul all the judicial acts or
Conventions; Westlake, International Law, 2d ed., Part II, p. 61.) Article 43, section III, of the
proceedings of the tribunals which the belligerent occupant had the right and duty to establish in
Hague Regulations or Conventions which we have already quoted in discussing the first
order to insure public order and safety during military occupation, would be sufficient to paralyze
question, imposes upon the occupant the obligation to establish courts; and Article 23 (h),
the social life of the country or occupied territory, for it would have to be expected that litigants
section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . .
would not willingly submit their litigation to courts whose judgements or decisions may
suspended . . . in a Court of Law the rights and action of the nationals of the hostile party,"
afterwards be annulled, and criminals would not be deterred from committing crimes or offenses
forbids him to make any declaration preventing the inhabitants from using their courts to assert
in the expectancy that they may escaped the penalty if judgments rendered against them may
or enforce their civil rights. (Decision of the Court of Appeals of England in the case of
be afterwards set aside.
Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof
That the proclamation has not invalidated all the judgements and proceedings of the courts of from asserting or enforcing therein their civil rights, by necessary implication, the military
justice during the Japanese regime, is impliedly confirmed by Executive Order No. 37, which has commander of the forces of liberation or the restored government is restrained from nullifying or
the force of law, issued by the President of the Philippines on March 10, 1945, by virtue of the setting aside the judgments rendered by said courts in their litigation during the period of
emergency legislative power vested in him by the Constitution and the laws of the occupation. Otherwise, the purpose of these precepts of the Hague Conventions would be
Commonwealth of the Philippines. Said Executive order abolished the Court of Appeals, and thwarted, for to declare them null and void would be tantamount to suspending in said courts the
provided "that all case which have heretofore been duly appealed to the Court of Appeals shall right and action of the nationals of the territory during the military occupation thereof by the
be transmitted to the Supreme Court final decision." This provision impliedly recognizes that the enemy. It goes without saying that a law that enjoins a person to do something will not at the
judgments and proceedings of the courts during the Japanese military occupation have not been same time empower another to undo the same. Although the question whether the President or
invalidated by the proclamation of General MacArthur of October 23, because the said Order commanding officer of the United States Army has violated restraints imposed by the
does not say or refer to cases which have been duly appealed to said court prior to the constitution and laws of his country is obviously of a domestic nature, yet, in construing and
Japanese occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly applying limitations imposed on the executive authority, the Supreme Court of the United States,
appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general
cases pending in the Court of Appeals prior to the Japanese military occupation of Manila on rules of international law and from fundamental principles known wherever the American flag
January 2, 1942, had been disposed of by the latter before the restoration of the Commonwealth flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in administration under martial law over the territory occupied by the army, and ordered that "all the
command of the forces of the United States in South Carolina after the end of the Civil War, laws now in force in the Commonwealth, as well as executive and judicial institutions, shall
wholly annulling a decree rendered by a court of chancery in that state in a case within its continue to be affective for the time being as in the past," and "all public officials shall remain in
jurisdiction, was declared void, and not warranted by the acts approved respectively March 2, their present post and carry on faithfully their duties as before." When the Philippine Executive
1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers and Commission was organized by Order No. 1 of the Japanese Commander in Chief, on January
duties of military officers in command of the several states then lately in rebellion. In the course 23, 1942, the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of
of its decision the court said; "We have looked carefully through the acts of March 2, 1867 and January 30 and February 5, respectively, continued the Supreme Court, Court of Appeals, Court
July 19, 1867. They give very large governmental powers to the military commanders of First Instance, and justices of the peace of courts, with the same jurisdiction in conformity with
designated, within the States committed respectively to their jurisdiction; but we have found the instructions given by the Commander in Chief of the Imperial Japanese Army in Order No. 3
nothing to warrant the order here in question. . . . The clearest language would be necessary to of February 20, 1942. And on October 14, 1943 when the so-called Republic of the Philippines
satisfy us that Congress intended that the power given by these acts should be so exercised. . . . was inaugurated, the same courts were continued with no substantial change in organization
It was an arbitrary stretch of authority, needful to no good end that can be imagined. Whether and jurisdiction thereof.
Congress could have conferred the power to do such an act is a question we are not called upon
to consider. It is an unbending rule of law that the exercise of military power, where the rights of
If the proceedings pending in the different courts of the Islands prior to the Japanese military
the citizen are concerned, shall never be pushed beyond what the exigency requires.
occupation had been continued during the Japanese military administration, the Philippine
(Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1
Executive Commission, and the so-called Republic of the Philippines, it stands to reason that the
Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint
same courts, which had become reestablished and conceived of as having in continued
indicated, we hold that the order was void."
existence upon the reoccupation and liberation of the Philippines by virtue of the principle of
postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases then
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to
declared that "all laws, regulations and processes of any other government in the Philippines continue said proceedings. As Taylor graphically points out in speaking of said principles "a
than that of the said Commonwealth are null and void without legal effect in areas of the state or other governmental entity, upon the removal of a foreign military force, resumes its old
Philippines free of enemy occupation and control," has not invalidated the judicial acts and place with its right and duties substantially unimpaired. . . . Such political resurrection is the
proceedings, which are not a political complexion, of the courts of justice in the Philippines that result of a law analogous to that which enables elastic bodies to regain their original shape upon
were continued by the Philippine Executive Commission and the Republic of the Philippines removal of the external force, and subject to the same exception in case of absolute crushing
during the Japanese military occupation, and that said judicial acts and proceedings were good of the whole fibre and content." (Taylor, International Public Law, p. 615.)
and valid before and now good and valid after the reoccupation of liberation of the Philippines by
the American and Filipino forces.
The argument advanced by the respondent judge in his resolution in support in his conclusion
that the Court of First Instance of Manila presided over by him "has no authority to take
3. The third and last question is whether or not the courts of the Commonwealth, which are the cognizance of, and continue said proceedings (of this case) to final judgment until and unless
same as those existing prior to, and continued during, the Japanese military occupation by the the Government of the Commonwealth of the Philippines . . . shall have provided for the transfer
Philippine Executive Commission and by the so-called Republic of the Philippines, have of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the cases
jurisdiction to continue now the proceedings in actions pending in said courts at the time the commenced and the left pending therein," is "that said courts were a government alien to the
Philippine Islands were reoccupied or liberated by the American and Filipino forces, and the Commonwealth Government. The laws they enforced were, true enough, laws of the
Commonwealth Government was restored. Commonwealth prior to Japanese occupation, but they had become the laws and the courts
had become the institutions of Japan by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146),
as they became later on the laws and institutions of the Philippine Executive Commission and
Although in theory the authority the authority of the local civil and judicial administration is
the Republic of the Philippines."
suspended as a matter of course as soon as military occupation takes place, in practice the
invader does not usually take the administration of justice into his own hands, but continues the
ordinary courts or tribunals to administer the laws of the country which he is enjoined, unless The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
absolutely prevented, to respect. As stated in the above-quoted Executive Order of President institutions of the country occupied if continued by the conqueror or occupant, become the laws
McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are and the courts, by adoption, of the sovereign nation that is militarily occupying the territory.
not usually abrogated but are allowed to remain in force and to be administered by the ordinary Because, as already shown, belligerent or military occupation is essentially provisional and does
tribunals substantially as they were before the occupation. This enlightened practice is, so far as not serve to transfer the sovereignty over the occupied territory to the occupant. What the court
possible, to be adhered to on the present occasion." And Taylor in this connection says: "From a said was that, if such laws and institutions are continued in use by the occupant, they become
theoretical point of view it may be said that the conqueror is armed with the right to substitute his his and derive their force from him, in the sense that he may continue or set them aside. The
arbitrary will for all preexisting forms of government, legislative, executive and judicial. From the laws and institution or courts so continued remain the laws and institutions or courts of the
stand-point of actual practice such arbitrary will is restrained by the provision of the law of occupied territory. The laws and the courts of the Philippines, therefore, did not become, by
nations which compels the conqueror to continue local laws and institution so far as military being continued as required by the law of nations, laws and courts of Japan. The provision of
necessity will permit." (Taylor, International Public Law, p.596.) Undoubtedly, this practice has Article 45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of the
been adopted in order that the ordinary pursuits and business of society may not be population of occupied territory to swear allegiance to the hostile power, "extends to prohibit
unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the everything which would assert or imply a change made by the invader in the legitimate
government established by the occupant of transient character. sovereignty. This duty is neither to innovate in the political life of the occupied districts, nor
needlessly to break the continuity of their legal life. Hence, so far as the courts of justice are
allowed to continue administering the territorial laws, they must be allowed to give their
Following these practice and precepts of the law of nations, Commander in Chief of the
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p.
Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the military
102). According to Wheaton, however, the victor need not allow the use of that of the legitimate
government. When in 1870, the Germans in France attempted to violate that rule by ordering, provost courts in the City of Manila was abolished by section 3 of Act No. 186, the same section
after the fall of the Emperor Napoleon, the courts of Nancy to administer justice in the name of provided that criminal cases pending therein within the jurisdiction of the municipal court created
the "High German Powers occupying Alsace and Lorraine," upon the ground that the exercise of by Act No. 183 were transferred to the latter.
their powers in the name of French people and government was at least an implied recognition
of the Republic, the courts refused to obey and suspended their sitting. Germany originally
That the present courts as the same courts which had been functioning during the Japanese
ordered the use of the name of "High German Powers occupying Alsace and Lorraine," but later
regime and, therefore, can continue the proceedings in cases pending therein prior to the
offered to allow use of the name of the Emperor or a compromise. (Wheaton, International Law,
restoration of the Commonwealth of the Philippines, is confirmed by Executive Order No. 37
War, 7th English ed. 1944, p. 244.)
which we have already quoted in support of our conclusion in connection with the second
question. Said Executive Order provides"(1) that the Court of Appeals created and established
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished," and "(2)
continues until changed by the some competent legislative power. It is not change merely by that all cases which have heretofore been duly appealed to the Court of Appeals shall be
change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws, III, Summary Section 9, transmitted to the Supreme Court for final decision. . . ." In so providing, the said Order
citing Commonwealth vs. Chapman, 13 Met., 68.) As the same author says, in his Treatise on considers that the Court of Appeals abolished was the same that existed prior to, and continued
the Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or interregnum in after, the restoration of the Commonwealth Government; for, as we have stated in discussing the
law. From the time the law comes into existence with the first-felt corporateness of a primitive previous question, almost all, if not all, of the cases pending therein, or which had theretofore
people it must last until the final disappearance of human society. Once created, it persists until (that is, up to March 10, 1945) been duly appealed to said court, must have been cases coming
a change take place, and when changed it continues in such changed condition until the next from the Courts of First Instance during the so-called Republic of the Philippines. If the Court of
change, and so forever. Conquest or colonization is impotent to bring law to an end; in spite of Appeals abolished by the said Executive Order was not the same one which had been
change of constitution, the law continues unchanged until the new sovereign by legislative acts functioning during the Republic, but that which had existed up to the time of the Japanese
creates a change." occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be
transmitted to the Supreme Court for final decision.
As courts are creatures of statutes and their existence defends upon that of the laws which
create and confer upon them their jurisdiction, it is evident that such laws, not being a political
nature, are not abrogated by a change of sovereignty, and continue in force "ex proprio vigore" It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment,
unless and until repealed by legislative acts. A proclamation that said laws and courts are the proceedings in cases, not of political complexion, pending therein at the time of the
expressly continued is not necessary in order that they may continue in force. Such restoration of the Commonwealth Government.
proclamation, if made, is but a declaration of the intention of respecting and not repealing those
laws. Therefore, even assuming that Japan had legally acquired sovereignty over these Islands,
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has
which she had afterwards transferred to the so-called Republic of the Philippines, and that the
jurisdiction to continue to final judgment the proceedings in civil case No. 3012, which involves
laws and the courts of these Islands had become the courts of Japan, as the said courts of the
civil rights of the parties under the laws of the Commonwealth Government, pending in said
laws creating and conferring jurisdiction upon them have continued in force until now, it
court at the time of the restoration of the said Government; and that the respondent judge of the
necessarily follows that the same courts may continue exercising the same jurisdiction over
court, having refused to act and continue him does a duty resulting from his office as presiding
cases pending therein before the restoration of the Commonwealth Government, unless and
judge of that court, mandamus is the speedy and adequate remedy in the ordinary course of law,
until they are abolished or the laws creating and conferring jurisdiction upon them are repealed
especially taking into consideration the fact that the question of jurisdiction herein involved does
by the said government. As a consequence, enabling laws or acts providing that proceedings
affect not only this particular case, but many other cases now pending in all the courts of these
pending in one court be continued by or transferred to another court, are not required by the
mere change of government or sovereignty. They are necessary only in case the former courts
are abolished or their jurisdiction so change that they can no longer continue taking cognizance
of the cases and proceedings commenced therein, in order that the new courts or the courts In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to
having jurisdiction over said cases may continue the proceedings. When the Spanish the respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of
sovereignty in the Philippine Islands ceased and the Islands came into the possession of the and continue to final judgment the proceedings in civil case No. 3012 of said court. No
United States, the "Audiencia" or Supreme Court was continued and did not cease to exist, and pronouncement as to costs. So ordered.
proceeded to take cognizance of the actions pending therein upon the cessation of the Spanish
sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme Court
created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
Instance of the Islands during the Spanish regime continued taking cognizance of cases pending
therein upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them
and created in its Chapter IV the present Courts of First Instance in substitution of the former.
Similarly, no enabling acts were enacted during the Japanese occupation, but a mere
proclamation or order that the courts in the Island were continued.

On the other hand, during the American regime, when section 78 of Act No. 136 was enacted
abolishing the civil jurisdiction of the provost courts created by the military government of
occupation in the Philippines during the Spanish-American War of 1898, the same section 78
provided for the transfer of all civil actions then pending in the provost courts to the proper
tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme Court
having jurisdiction over them according to law. And later on, when the criminal jurisdiction of
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials
of said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not permitted for breastmilk

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24
of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and children,
are informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,

Republic of the Philippines

SUPREME COURT However, on June 28, 2006, petitioner, representing its members that are manufacturers of
Manila breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
G.R. No. 173034 October 9, 2007 jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR. 3

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner, On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
vs. implementing the questioned RIRR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. After the Comment and Reply had been filed, the Court set the case for oral arguments on June
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents. 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight 2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled and Regulations (RIRR) issued by the Department of Health (DOH) is not
benefits of breastmilk. But how should this end be attained? constitutional;

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify 2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Code);
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). 2.2 Whether pertinent international agreements1 entered into by the Philippines are
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and part of the law of the land and may be implemented by the DOH through the RIRR; If
go beyond the law it is supposed to implement. in the affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process the entire industry, would be remiss in its duties if it fails to act on governmental action that
clause and are in restraint of trade; and would affect any of its industry members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be considered as a
real party-in-interest which stands to be benefited or injured by any judgment in the present
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

On the constitutionality of the provisions of the RIRR

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
First, the Court will determine if pertinent international instruments adverted to by respondents
"2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World
are part of the law of the land.
Health Assembly (WHA) Resolutions.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
The parties filed their respective memoranda.
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments 10 regarding infant
The petition is partly imbued with merit. and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
On the issue of petitioner's standing

The Court notes that the following international instruments invoked by respondents, namely: (1)
With regard to the issue of whether petitioner may prosecute this case as the real party-in-
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals, 4 to Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of
wit: Discrimination Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the advantages of
The modern view is that an association has standing to complain of injuries to its breastfeeding, ensure the health and well-being of families, and ensure that women are provided
members. This view fuses the legal identity of an association with that of its with services and nutrition in connection with pregnancy and lactation. Said instruments do not
members. An association has standing to file suit for its workers despite its lack contain specific provisions regarding the use or marketing of breastmilk substitutes.
of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.
The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law
x x x We note that, under its Articles of Incorporation, the respondent was organized x either by transformation or incorporation.11 The transformation method requires that an
x x to act as the representative of any individual, company, entity or association on international law be transformed into a domestic law through a constitutional mechanism such as
matters related to the manpower recruitment industry, and to perform other acts and local legislation. The incorporation method applies when, by mere constitutional declaration,
activities necessary to accomplish the purposes embodied therein. The respondent international law is deemed to have the force of domestic law.12
is, thus, the appropriate party to assert the rights of its members, because it and
its members are in every practical sense identical. x x x The respondent Treaties become part of the law of the land through transformation pursuant to Article VII,
[association] is but the medium through which its individual members seek to
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall be
make more effective the expression of their voices and the redress of their
valid and effective unless concurred in by at least two-thirds of all the members of the Senate."
grievances. 5 (Emphasis supplied)
Thus, treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court conflicts.13
ruled that an association has the legal personality to represent its members because the results
of the case will affect their vital interests.7 The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in 1987 Constitution.
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
and any of its agencies, the medical professions and the general public." 8 Thus, as an
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing the force and effect of law in this jurisdiction and not the ICMBS per se.
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9 to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this
the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the The initial factor for determining the existence of custom is the actual behavior of
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other states. This includes several elements: duration, consistency, and generality of the
marketing materials may be allowed if such materials are duly authorized and approved practice of states.
by the Inter-Agency Committee (IAC).
The required duration can be either short or long. x x x
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of
Duration therefore is not the most important element. More important is the
the law of the land and adheres to the policy of peace, equality, justice, freedom,
consistency and the generality of the practice. x x x
cooperation and amity with all nations. (Emphasis supplied)

embodies the incorporation method.14

Once the existence of state practice has been established, it becomes necessary to
In Mijares v. Ranada,15 the Court held thus:
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a
[G]enerally accepted principles of international law, by virtue of the incorporation matter of courtesy? Opinio juris, or the belief that a certain form of behavior is
clause of the Constitution, form part of the laws of the land even if they do not derive obligatory, is what makes practice an international rule. Without it, practice is not
from treaty obligations. The classical formulation in international law sees law.22(Underscoring and Emphasis supplied)
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States;
Clearly, customary international law is deemed incorporated into our domestic system. 23
and a psychological element known as the opinion juris sive necessitates (opinion as
to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring WHA Resolutions have not been embodied in any local legislation. Have they attained the status
it.16 (Emphasis supplied) of customary law and should they then be deemed incorporated as part of the law of the land?

"Generally accepted principles of international law" refers to norms of general or customary The World Health Organization (WHO) is one of the international specialized agencies allied with
international law which are binding on all states,17 i.e., renunciation of war as an instrument of the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter.
national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
principles of law" has also been depicted in this wise: biological, pharmaceutical and similar products moving in international commerce," 27and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
Some legal scholars and judges look upon certain "general principles of law" as a primary
source of international law because they have the "character of jus rationale" and are "valid
through all kinds of human societies."(Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of Regulations, along with conventions and agreements, duly adopted by the WHA bind member
international law because they are "basic to legal systems generally" and hence part of the states thus:
jus gentium. These principles, he believes, are established by a process of reasoning based on
the common identity of all legal systems. If there should be doubt or disagreement, one must
Article 19. The Health Assembly shall have authority to adopt conventions or
look to state practice and determine whether the municipal law principle provides a just and
acceptable solution. x x x 21 (Emphasis supplied) agreements with respect to any matter within the competence of the Organization. A
two-thirds vote of the Health Assembly shall be required for the adoption of
such conventions or agreements, which shall come into force for each Member
Fr. Joaquin G. Bernas defines customary international law as follows: when accepted by it in accordance with its constitutional processes.

Custom or customary international law means "a general and consistent practice of Article 20. Each Member undertakes that it will, within eighteen months after the
states followed by them from a sense of legal obligation [opinio juris]." adoption by the Health Assembly of a convention or agreement, take action relative
(Restatement) This statement contains the two basic elements of custom: to the acceptance of such convention or agreement. Each Member shall notify the
the material factor, that is, how states behave, and the psychological Director-General of the action taken, and if it does not accept such convention or
or subjective factor, that is, why they behave the way they do. agreement within the time limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to make an annual report to
the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted
(a) sanitary and quarantine requirements and other procedures designed to prevent most of the provisions into law which is the Milk Code, the subsequent WHA
the international spread of disease; (b) nomenclatures with respect to diseases, Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
causes of death and public health practices; (c) standards with respect to diagnostic continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
procedures for international use; (d) standards with respect to the safety, purity and promotions of breastmilk substitutes, have not been adopted as a domestic law.
potency of biological, pharmaceutical and similar products moving in international
commerce; (e) advertising and labeling of biological, pharmaceutical and similar
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
products moving in international commerce.
principles and practices that influence state behavior.31

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Members after due notice has been given of their adoption by the Health Assembly
Chapter III of the 1946 Statute of the International Court of Justice. 32 It is, however, an
except for such Members as may notify the Director-General of rejection or
expression of non-binding norms, principles, and practices that influence state
reservations within the period stated in the notice. (Emphasis supplied)
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this
category.34 The most notable is the UN Declaration of Human Rights, which this Court has
On the other hand, under Article 23, recommendations of the WHA do not come into enforced in various cases, specifically, Government of Hongkong Special Administrative Region
force for members, in the same way that conventions or agreements under Article 19 v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel
and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Management, Ltd. v. Developers Group of Companies, Inc..38

Article 23. The Health Assembly shall have authority to make recommendations to The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
Members with respect to any matter within the competence of the Organization. with the mandate to promote and protect intellectual property worldwide, has resorted to soft law
(Emphasis supplied) as a rapid means of norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture Organization (in the
The absence of a provision in Article 23 of any mechanism by which the recommendation would
form of the Codex Alimentarius).40
come into force for member states is conspicuous.

WHO has resorted to soft law. This was most evident at the time of the Severe Acute
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
Respiratory Syndrome (SARS) and Avian flu outbreaks.
generally not binding, but they "carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution Although the IHR Resolution does not create new international law binding on
No. 34.22 states: WHO member states, it provides an excellent example of the power of "soft law"
in international relations. International lawyers typically distinguish binding
rules of international law-"hard law"-from non-binding norms, principles, and
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of
practices that influence state behavior-"soft law." WHO has during its existence
the Constitution, the International Code of Marketing of Breastmilk Substitutes
generated many soft law norms, creating a "soft law regime" in international
annexed to the present resolution." (Emphasis supplied)
governance for public health.

The Introduction to the ICMBS also reads as follows:

The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious diseases.
In January 1981, the Executive Board of the World Health Organization at its sixty- These resolutions clearly define WHO member states' normative duty to cooperate
seventh session, considered the fourth draft of the code, endorsed it, and unanimously fully with other countries and with WHO in connection with infectious disease
recommended to the Thirty-fourth World Health Assembly the text of a resolution by surveillance and response to outbreaks.
which it would adopt the code in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the has taught the lesson that participating in, and enhancing, international cooperation on
WHO Constitution, to wit: infectious disease controls is in a country's self-interest x x x if this warning is heeded,
the "soft law" in the SARS and IHR Resolution could inform the development of
general and consistent state practice on infectious disease surveillance and outbreak
Art. 62. Each member shall report annually on the action taken with respect to
response, perhaps crystallizing eventually into customary international law on
recommendations made to it by the Organization, and with respect to conventions, infectious disease prevention and control.41
agreements and regulations.

In the Philippines, the executive department implemented certain measures recommended by

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
member states to implement the ICMBS are merely recommendatory and legally non- 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments
broad powers to close down schools/establishments, conduct health surveillance and only pursuant to a law amending the Milk Code passed by the constitutionally authorized
monitoring, and ban importation of poultry and agricultural products. branch of government, the legislature.

It must be emphasized that even under such an international emergency, the duty of a state to Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
implement the IHR Resolution was still considered not binding or enforceable, although said can be validly implemented by the DOH through the subject RIRR.
resolutions had great political influence.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with
As previously discussed, for an international rule to be considered as customary law, it must be those of the Milk Code.
established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that
any compliance by member states with said WHA Resolutions was obligatory in nature.
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to "young children" or those from ages two years old and
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into MILK MILK CODE RIRR
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the WHEREAS, in order to ensure that safe and Section 2. Purpose These Revised Rules
law of the land that can be implemented by executive agencies without the need of a law adequate nutrition for infants is provided, there is and Regulations are hereby promulgated to
enacted by the legislature. a need to protect and promote breastfeeding and ensure the provision of safe and adequate
to inform the public about the proper use of nutrition for infants and young children by the
breastmilk substitutes and supplements and promotion, protection and support of
Second, the Court will determine whether the DOH may implement the provisions of the WHA related products through adequate, consistent breastfeeding and by ensuring the proper use
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in and objective information and appropriate of breastmilk substitutes, breastmilk
the absence of a domestic law. regulation of the marketing and distribution of the supplements and related products when these
said substitutes, supplements and related are medically indicated and only when
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH products; necessary, on the basis of adequate
shall define the national health policy and implement a national health plan within the information and through appropriate
framework of the government's general policies and plans, and issue orders and regulations marketing and distribution.
SECTION 4(e). "Infant" means a person falling
concerning the implementation of established health policies. within the age bracket of 0-12 months.
Section 5(ff). "Young Child" means a person
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of from the age of more than twelve (12) months
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as up to the age of three (3) years (36 months).
part of the national health policy.
2. The Milk Code recognizes that infant formula may be a proper and possible
Respondents submit that the national policy on infant and young child feeding is embodied in substitute for breastmilk in certain instances; but the RIRR provides "exclusive
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of replacement for breastmilk":
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding MILK CODE RIRR
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles The
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. adequate nutrition for infants is provided, there following are the underlying principles from
No. 2005-0014 is it declared that as part of such health policy, the advertisement or is a need to protect and promote breastfeeding which the revised rules and regulations are
promotion of breastmilk substitutes should be absolutely prohibited. and to inform the public about the proper use of premised upon:
breastmilk substitutes and supplements and
related products through adequate, consistent
The national policy of protection, promotion and support of breastfeeding cannot automatically a. Exclusive breastfeeding is for infants from 0
and objective information and appropriate
be equated with a total ban on advertising for breastmilk substitutes. to six (6) months.
regulation of the marketing and distribution of
the said substitutes, supplements and related
In view of the enactment of the Milk Code which does not contain a total ban on the advertising products; b. There is no substitute or replacement for
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will breastmilk.
regulate said advertising and promotion, it follows that a total ban policy could be implemented
3. The Milk Code only regulates and does not impose unreasonable requirements for benefits or superiority of breastfeeding or
advertising and promotion; RIRR imposes an absolute ban on such activities for which idealize the use of breastmilk
breastmilk substitutes intended for infants from 0-24 months old or beyond, and substitutes and milk supplements. In this
forbids the use of health and nutritional claims. Section 13 of the RIRR, which connection, no pictures of babies and
provides for a "total effect" in the promotion of products within the scope of the Code, children together with their mothers, fathers,
is vague: siblings, grandparents, other relatives or
caregivers (or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;
SECTION 6. The General Public and Section 4. Declaration of Principles The
Mothers. following are the underlying principles from
which the revised rules and regulations are b. The term "humanized," "maternalized,"
premised upon: "close to mother's milk" or similar words in
(a) No advertising, promotion or other describing breastmilk substitutes or milk
marketing materials, whether written, audio supplements;
or visual, for products within the scope of xxxx
this Code shall be printed, published,
distributed, exhibited and broadcast unless c. Pictures or texts that idealize the use of
f. Advertising, promotions, or sponsor- infant and milk formula.
such materials are duly authorized and
ships of infant formula, breastmilk
approved by an inter-agency
substitutes and other related products are
committee created herein pursuant to the Section 16. All health and nutrition claims
applicable standards provided for in this for products within the scope of the Code are
Code. absolutely prohibited. For this purpose, any
Section 11. Prohibition No advertising, phrase or words that connotes to increase
promotions, sponsorships, or marketing emotional, intellectual abilities of the infant
materials and activities for breastmilk and young child and other like phrases shall
substitutes intended for infants and young not be allowed.
children up to twenty-four (24) months, shall
be allowed, because they tend to convey or
give subliminal messages or impressions 4. The RIRR imposes additional labeling requirements not found in the Milk Code:
that undermine breastmilk and breastfeeding
or otherwise exaggerate breastmilk
substitutes and/or replacements, as well as
related products covered within the scope of SECTION 10. Containers/Label. Section 26. Content Each container/label
this Code. shall contain such message, in both Filipino
and English languages, and which message
(a) Containers and/or labels shall be
cannot be readily separated therefrom, relative
Section 13. "Total Effect" - Promotion of designed to provide the necessary
the following points:
products within the scope of this Code must information about the appropriate use of
be objective and should not equate or make the products, and in such a way as not to
the product appear to be as good or equal to discourage breastfeeding. (a) The words or phrase "Important Notice" or
breastmilk or breastfeeding in the advertising "Government Warning" or their equivalent;
concept. It must not in any case undermine (b) Each container shall have a clear,
breastmilk or breastfeeding. The "total conspicuous and easily readable and (b) A statement of the superiority of
effect" should not directly or indirectly understandable message in Pilipino or breastfeeding;
suggest that buying their product would English printed on it, or on a label, which
produce better individuals, or resulting in message can not readily become
greater love, intelligence, ability, harmony or (c) A statement that there is no substitute for
separated from it, and which shall
in any manner bring better health to the baby breastmilk;
include the following points:
or other such exaggerated and
unsubstantiated claim. (d) A statement that the product shall be used
(i) the words "Important Notice" or their
only on the advice of a health worker as to the
Section 15. Content of Materials. - The need for its use and the proper methods of use;
following shall not be included in advertising,
promotional and marketing materials: (ii) a statement of the superiority of
(e) Instructions for appropriate prepara-tion,
and a warning against the health hazards of
a. Texts, pictures, illustrations or information inappropriate preparation; and
which discourage or tend to undermine the (iii) a statement that the product shall be
used only on the advice of a health (f) The health hazards of unnecessary or advancement of breasfeeding.
worker as to the need for its use and the improper use of infant formula and other
proper methods of use; and related products including information that
SECTION 22. No manufacturer, distributor, or
powdered infant formula may contain
representatives of products covered by the
pathogenic microorganisms and must be
(iv) instructions for appropriate Code shall be allowed to conduct or be
prepared and used appropriately.
preparation, and a warning against the involved in any activity on breastfeeding
health hazards of inappropriate promotion, education and production of
preparation. Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
5. The Milk Code allows dissemination of information on infant formula to health seminars for women and children activitiesand
professionals; the RIRR totally prohibits such activity: to avoid the use of these venues to market
their brands or company names.
SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or SECTION 32. Primary Responsibility of
representatives of products covered by the Health Workers - It is the primary
Code shall be allowed to conduct or be responsibility of the health workers to promote,
(b) No facility of the health care system protect and support breastfeeding and
involved in any activity on breastfeeding
shall be used for the purpose of appropriate infant and young child feeding. Part
promotion, education and production of
promoting infant formula or other of this responsibility is to continuously update
Information, Education and Communication
products within the scope of this their knowledge and skills on breastfeeding. No
(IEC) materials on breastfeeding, holding of or
Code. This Code does not, however, assistance, support, logistics or training from
participating as speakers in classes or
preclude the dissemination of information milk companies shall be permitted.
seminars for women and children activities and
to health professionals as provided in
to avoid the use of these venues to market
Section 8(b).
their brands or company names.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
SECTION 8. Health Workers. -
SECTION 16. All health and nutrition claims for
products within the scope of the Code are MILK CODE RIRR
(b) Information provided by absolutely prohibited. For this purpose, any SECTION 6. The General Public and Section 51. Donations Within the Scope of
manufacturers and distributors to health phrase or words that connotes to increase Mothers. This Code - Donations of products, materials,
professionals regarding products within emotional, intellectual abilities of the infant and defined and covered under the Milk Code and
the scope of this Code shall be restricted young child and other like phrases shall not be these implementing rules and regulations,
(f) Nothing herein contained shall
to scientific and factual matters and such allowed. shall be strictly prohibited.
prevent donations from manufacturers
information shall not imply or create a
and distributors of products within the
belief that bottle-feeding is equivalent or
scope of this Code upon request by or Section 52. Other Donations By Milk
superior to breastfeeding. It shall also
with the approval of the Ministry of Companies Not Covered by this Code. -
include the information specified in
Health. Donations of products, equipments, and the
Section 5(b).
like, not otherwise falling within the scope of
this Code or these Rules, given by milk
6. The Milk Code permits milk manufacturers and distributors to extend assistance in companies and their agents, representatives,
research and continuing education of health professionals; RIRR absolutely forbids whether in kind or in cash, may only be
the same. coursed through the Inter Agency Committee
(IAC), which shall determine whether such
donation be accepted or otherwise.
SECTION 8. Health Workers Section 4. Declaration of Principles
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

(e) Manufacturers and distributors of The following are the underlying principles from
products within the scope of this Code may which the revised rules and regulations are MILK CODE RIRR
assist in the research, scholarships and premised upon: Section 46. Administrative Sanctions. The
continuing education, of health following administrative sanctions shall be imposed
professionals, in accordance with the rules upon any person, juridical or natural, found to have
i. Milk companies, and their violated the provisions of the Code and its
and regulations promulgated by the
representatives, should not form part of any implementing Rules and Regulations:
Ministry of Health.
policymaking body or entity in relation to the
a) 1st violation Warning; 1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:
b) 2nd violation Administrative fine of a minimum
of Ten Thousand (P10,000.00) to Fifty Thousand SECTION 3. Scope of the Code The Code applies to the marketing, and practices
(P50,000.00) Pesos, depending on the gravity and related thereto, of the following products: breastmilk substitutes, including infant
extent of the violation, including the recall of the formula; other milk products, foods and beverages, including bottle-fed
offending product; complementary foods, when marketed or otherwise represented to be suitable, with or
without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information
c) 3rd violation Administrative Fine of a minimum concerning their use.
of Sixty Thousand (P60,000.00) to One Hundred
Fifty Thousand (P150,000.00) Pesos, depending
on the gravity and extent of the violation, and in Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind
addition thereto, the recall of the offending product, of product being marketed to the public. The law treats infant formula, bottle-fed
and suspension of the Certificate of Product complementary food, and breastmilk substitute as separate and distinct product categories.
Registration (CPR);
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy
d) 4th violation Administrative Fine of a minimum the normal nutritional requirements of infants up to between four to six months of age, and
of Two Hundred Thousand (P200,000.00) to Five adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
Hundred (P500,000.00) Thousand Pesos, complementary food refers to "any food, whether manufactured or locally prepared, suitable as a
depending on the gravity and extent of the complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
violation; and in addition thereto, the recall of the nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the
product, revocation of the CPR, suspension of the age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12
License to Operate (LTO) for one year; months that is sought to be promoted and protected by the Milk Code.

e) 5th and succeeding repeated violations But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any
Administrative Fine of One Million (P1,000,000.00) food being marketed or otherwise presented as a partial or total replacement for breastmilk,
Pesos, the recall of the offending product, whether or not suitable for that purpose." This section conspicuously lacks reference to any
cancellation of the CPR, revocation of the License particular age-group of children. Hence, the provision of the Milk Code cannot be
to Operate (LTO) of the company concerned, considered exclusive for children aged 0-12 months. In other words, breastmilk substitutes
including the blacklisting of the company to be may also be intended for young children more than 12 months of age. Therefore, by regulating
furnished the Department of Budget and breastmilk substitutes, the Milk Code also intends to protect and promote the nourishment of
Management (DBM) and the Department of Trade children more than 12 months old.
and Industry (DTI);
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided
f) An additional penalty of Two Thou-sand Five in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be
Hundred (P2,500.00) Pesos per day shall be made used by children aged over 12 months.
for every day the violation continues after having
received the order from the IAC or other such There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
appropriate body, notifying and penalizing the
company for the infraction.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk.
For purposes of determining whether or not there is
"repeated" violation, each product violation
belonging or owned by a company, including those The entirety of the RIRR, not merely truncated portions thereof, must be considered and
of their subsidiaries, are deemed to be violations of construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and
the concerned milk company and shall not be phrases in the Rule should not be studied as detached and isolated expressions, but the whole
based on the specific violating product alone. and every part thereof must be considered in fixing the meaning of any of its parts and in order
to produce a harmonious whole."
9. The RIRR provides for repeal of existing laws to the contrary.
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the
use of breastmilk substitutes is proper if based on complete and updated information."
The Court shall resolve the merits of the allegations of petitioner seriatim. Section 8 of the RIRR also states that information and educational materials should include
information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of (4) To exercise such other powers and functions as may be necessary for or
breastmilk substitutes may be proper. incidental to the attainment of the purposes and objectives of this Code.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked SECTION 5. Information and Education
with each other.
(a) The government shall ensure that objective and consistent information is
To resolve the question of whether the labeling requirements and advertising regulations under provided on infant feeding, for use by families and those involved in the field of infant
the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the nutrition. This responsibility shall cover the planning, provision, design and
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code, 47 and dissemination of information, and the control thereof, on infant nutrition. (Emphasis
as delegated in particular under the Milk Code. supplied)

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative Further, DOH is authorized by the Milk Code to control the content of any information on
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following
matter precludes the need to further discuss it..48 However, health information, particularly manner:
advertising materials on apparently non-toxic products like breastmilk substitutes and
supplements, is a relatively new area for regulation by the DOH. 49
SECTION 5. x x x
As early as the 1917 Revised Administrative Code of the Philippine Islands, health information
(b) Informational and educational materials, whether written, audio, or visual, dealing
was already within the ambit of the regulatory powers of the predecessor of DOH. 51 Section 938
with the feeding of infants and intended to reach pregnant women and mothers of
thereof charged it with the duty to protect the health of the people, and vested it with such
infants, shall include clear information on all the following points: (1) the benefits and
powers as "(g) the dissemination of hygienic information among the people and especially the
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and
inculcation of knowledge as to the proper care of infants and the methods of preventing and
maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
combating dangerous communicable diseases."
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state or home-prepared. When such materials contain information about the use of
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and infant formula, they shall include the social and financial implications of its use;
promote the right to health of the people and instill health consciousness among them."52 To the health hazards of inappropriate foods or feeding methods; and, in particular,
that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate the health hazards of unnecessary or improper use of infant formula and other
health information and educate the population on important health, medical and environmental breastmilk substitutes. Such materials shall not use any picture or text which
matters which have health implications."53 may idealize the use of breastmilk substitutes.

When it comes to information regarding nutrition of infants and young children, however, the Milk SECTION 8. Health Workers
Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power
to ensure that there is adequate, consistent and objective information on breastfeeding and use
of breastmilk substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
SECTION 12. Implementation and Monitoring
factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
xxxx information specified in Section 5(b).

(b) The Ministry of Health shall be principally responsible for the implementation and SECTION 10. Containers/Label
enforcement of the provisions of this Code. For this purpose, the Ministry of Health
shall have the following powers and functions:
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
(1) To promulgate such rules and regulations as are necessary or proper for breastfeeding.
the implementation of this Code and the accomplishment of its purposes
and objectives.

(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
the information that would reach pregnant women, mothers of infants, and health professionals and b) that there be a statement that powdered infant formula may contain pathogenic
and workers in the health care system is restricted to scientific and factual matters and microorganisms and must be prepared and used appropriately. Section 1657of the RIRR
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. prohibits all health and nutrition claims for products within the scope of the Milk Code, such as
claims of increased emotional and intellectual abilities of the infant and young child.
It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control These requirements and limitations are consistent with the provisions of Section 8 of the Milk
does not encompass the power to absolutely prohibit the advertising, marketing, and promotion Code, to wit:
of breastmilk substitutes.
SECTION 8. Health workers -
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by
the Code:

(b) Information provided by manufacturers and distributors to health professionals

a) Section 2 which requires adequate information and appropriate marketing and
regarding products within the scope of this Code shall be restricted to scientific and
distribution of breastmilk substitutes, to wit:
factual matters, and such information shall notimply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
SECTION 2. Aim of the Code The aim of the Code is to contribute to the information specified in Section 5.58 (Emphasis supplied)
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
substitutes and breastmilk supplements when these are necessary, on the
"maternalized," or similar terms.
basis of adequate information and through appropriate marketing and
These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
b) Section 3 which specifically states that the Code applies to the marketing of and
such information would be inconsistent with the superiority of breastfeeding.
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
c) Section 5(a) which provides that the government shall ensure that objective and
restrictive application of Section 8(b) will result in the absurd situation in which milk companies
consistent information is provided on infant feeding;
and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their
d) Section 5(b) which provides that written, audio or visual informational and products the exact opposite message. That askewed interpretation of the Milk Code is precisely
educational materials shall not use any picture or text which may idealize the use of what Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk substitutes and should include information on the health hazards of breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving the
unnecessary or improper use of said product; government control over planning, provision, design, and dissemination of information on infant
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials; Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and promotion of breastfeeding as
f) Section 8(b) which states that milk companies may provide information to health
embodied in Section 260 of the Milk Code.
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section
5(b) of the Milk Code which reads:
g) Section 10 which provides that containers or labels should not contain information
that would discourage breastfeeding and idealize the use of infant formula. SECTION 5. x x x

It is in this context that the Court now examines the assailed provisions of the RIRR regarding xxxx
labeling and advertising.
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following points: x x x (5) where The members may designate their duly authorized representative to every meeting of
needed, the proper use of infant formula, whether manufactured industrially or home- the Committee.
prepared. When such materials contain information about the use of infant formula,
they shall include the social and financial implications of its use; the health hazards
The Committee shall have the following powers and functions:
of inappropriate foods or feeding methods; and, in particular, the health hazards
of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the (1) To review and examine all advertising. promotion or other marketing
use of breastmilk substitutes. (Emphasis supplied) materials, whether written, audio or visual, on products within the scope of
this Code;
The label of a product contains information about said product intended for the buyers thereof.
The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely (2) To approve or disapprove, delete objectionable portions from and
adds a fair warning about the likelihood of pathogenic microorganisms being present in infant prohibit the printing, publication, distribution, exhibition and broadcast of, all
formula and other related products when these are prepared and used inappropriately. advertising promotion or other marketing materials, whether written, audio
or visual, on products within the scope of this Code;
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone
to contaminations and there is as yet no technology that allows production of powdered infant (3) To prescribe the internal and operational procedure for the exercise of its
formula that eliminates all forms of contamination.62 powers and functions as well as the performance of its duties and
responsibilities; and
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic (4) To promulgate such rules and regulations as are necessary or
microorganisms is in accordance with Section 5(b) of the Milk Code. proper for the implementation of Section 6(a) of this Code. x x x
(Emphasis supplied)
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes
and supplements and related products cannot be questioned. It is its intervention into the area of However, Section 11 of the RIRR, to wit:
advertising, promotion, and marketing that is being assailed by petitioner.
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing
In furtherance of Section 6(a) of the Milk Code, to wit: materials and activities for breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed, because they tend to convey
or give subliminal messages or impressions that undermine breastmilk and
SECTION 6. The General Public and Mothers.
breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, as
well as related products covered within the scope of this Code.
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published,
prohibits advertising, promotions, sponsorships or marketing materials and activities for
distributed, exhibited and broadcast unless such materials are duly authorized and
breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit:
approved by an inter-agency committee created herein pursuant to the applicable
standards provided for in this Code.
SECTION 4. Declaration of Principles
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus: xxxx

SECTION 12. Implementation and Monitoring - (f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes
and other related products are prohibited.
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of
the following members is hereby created: The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and
Minister of Health ------------------- Chairman
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Minister of Trade and Industry ------------------- Member Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly x x x Don't you think that the Department of Health overstepped its rule making
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not authority when it totally banned advertising and promotion under Section 11
actually operational, viz: prescribed the total effect rule as well as the content of materials under Section 13
and 15 of the rules and regulations?
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or
not there is an absolute prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12 provides is not an absolute xxxx
prohibition because Section 11 while it states and it is entitled prohibition it states that
no advertising, promotion, sponsorship or marketing materials and activities for breast
milk substitutes intended for infants and young children up to 24 months shall be
allowed because this is the standard they tend to convey or give subliminal messages
or impression undermine that breastmilk or breastfeeding x x x. x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered to SOLICITOR GENERAL DEVANADERA:
process and evaluate all the advertising and promotion materials.
Yes, your Honor.
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it
simply regulates the advertisement and the promotions of breastfeeding milk
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?


Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because there It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee
that can evaluate some advertising and promotional materials, subject to the
may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will standards that we have stated earlier, which are- they should not undermine
undermine the practice of breastfeeding, Your Honor. breastfeeding, Your Honor.

xxxx xxxx

ASSOCIATE JUSTICE SANTIAGO: x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your
Madam Solicitor General, under the Milk Code, which body has authority or power to Honor.
promulgate Rules and Regulations regarding the Advertising, Promotion and
Marketing of Breastmilk Substitutes?


So in short, will you please clarify there's no absolute ban on advertisement regarding
milk substitute regarding infants two (2) years below?
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
We can proudly say that the general rule is that there is a prohibition, however, we
ASSOCIATE JUSTICE SANTIAGO: take exceptions and standards have been set. One of which is that, the Inter-Agency
Committee can allow if the advertising and promotions will not undermine breastmilk (b) Each container shall have a clear, conspicuous and easily readable and
and breastfeeding, Your Honor.63 understandable message in Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and which shall include the
following points:
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

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

However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section
12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides (ii) a statement of the superiority of breastfeeding;
that the rules and regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk
(iii) a statement that the product shall be used only on the advice of a health
of being repetitious, and for easy reference, are quoted hereunder:
worker as to the need for its use and the proper methods of use; and

SECTION 5. Information and Education

(iv) instructions for appropriate preparation, and a warning against the
health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
(b) Informational and educational materials, whether written, audio, or visual, dealing enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section
with the feeding of infants and intended to reach pregnant women and mothers of 5(a) of the Milk Code states that:
infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and
SECTION 5. Information and Education
maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially (a) The government shall ensure that objective and consistent information is
or home-prepared. When such materials contain information about the use of infant provided on infant feeding, for use by families and those involved in the field of infant
formula, they shall include the social and financial implications of its use; the health nutrition. This responsibility shall cover the planning, provision, design and
hazards of inappropriate foods of feeding methods; and, in particular, the health dissemination of information, and the control thereof, on infant nutrition. (Emphasis
hazards of unnecessary or improper use of infant formula and other breastmilk supplied)
substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes.
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
xxxx screen advertising, promotional, or other marketing materials.

SECTION 8. Health Workers. It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR
which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code
must be objective and should not equate or make the product appear to be as good or
(b) Information provided by manufacturers and distributors to health professionals
equal to breastmilk or breastfeeding in the advertising concept. It must not in any case
regarding products within the scope of this Code shall be restricted to scientific and
undermine breastmilk or breastfeeding. The "total effect" should not directly or
factual matters and such information shall not imply or create a belief that bottle
indirectly suggest that buying their product would produce better individuals, or
feeding is equivalent or superior to breastfeeding. It shall also include the information
resulting in greater love, intelligence, ability, harmony or in any manner bring better
specified in Section 5(b).
health to the baby or other such exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion,
and marketing. Through that single provision, the DOH exercises control over the information
SECTION 10. Containers/Label content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also sets a viable standard against which
the IAC may screen such materials before they are made public.
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
breastfeeding. In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
"public interest," "justice and equity," "public convenience and welfare," and assistance, support, logistics or training to health workers. This provision is within the
"simplicity, economy and welfare."65 prerogative given to the DOH under Section 8(e)74of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships
and the continuing education, of health professionals in accordance with the rules and
In this case, correct information as to infant feeding and nutrition is infused with public interest
regulations promulgated by the Ministry of Health, now DOH.
and welfare.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk
4. With regard to activities for dissemination of information to health professionals, the Court also
Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and
finds that there is no inconsistency between the provisions of the Milk Code and the RIRR.
distributors of breastmilk substitutes upon the request or with the approval of the DOH. The
Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows
law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion
dissemination of information to health professionals but such information is restricted to
of the DOH whether to request or accept such donations. The DOH then appropriately exercised
scientific and factual matters.
its discretion through Section 5175 of the RIRR which sets forth its policy not to request or
approve donations from manufacturers and distributors of breastmilk substitutes.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is the
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
involvement of the manufacturer and distributor of the products covered by the Code in activities
donation from milk companies not covered by the Code should be coursed through the IAC
for the promotion, education and production of Information, Education and Communication (IEC)
which shall determine whether such donation should be accepted or refused. As reasoned out
materials regarding breastfeeding that are intended for women and children. Said provision
by respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter,
cannot be construed to encompass even the dissemination of information to health
no person or entity can be forced to accept a donation. There is, therefore, no real inconsistency
professionals, as restricted by the Milk Code.
between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also
in the Milk Code, the Court upholds petitioner's objection thereto.
assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation in
any policymaking body in relation to the advancement of breastfeeding.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The
glaring difference in said case and the present case before the Court is that, in the Civil
Section 4(i) of the RIRR provides that milk companies and their representatives should not form
Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the
part of any policymaking body or entity in relation to the advancement of breastfeeding. The
law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics
Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section
Board (CAB) was granted by the same law the power to review on appeal the order or decision
12(b) of the Milk Code, it is the DOH which shall be principally responsible for the
of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such
implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to
fine and civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative
decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding.
Therefore, the RIRR's prohibition on milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord with the Milk Code.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court
upheld the Department of Energy (DOE) Circular No. 2000-06-10
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission
giving reasearch assistance and continuing education to health professionals. Section 2270 of
of prohibited acts. The Court found that nothing in the circular contravened the law because the
the RIRR does not pertain to research assistance to or the continuing education of health
DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's argument against In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH
this particular provision must be struck down. the authority to fix or impose administrative fines. Thus, without any express grant of power to fix
or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the
DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the
RIRR. Said provision is, therefore, null and void.
RIRR provide that research assistance for health workers and researchers may be allowed
upon approval of an ethics committee, and with certain disclosure requirements imposed
on the milk company and on the recipient of the research award. The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of
the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and
other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for
The Milk Code endows the DOH with the power to determine how such research or educational
the penalties to be imposed on violators of the provision of the Milk Code or the rules and
assistance may be given by milk companies or under what conditions health workers may
regulations issued pursuant to it, to wit:
accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of
research done or extent of assistance given by milk companies are completely in accord with the
Milk Code. SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations The framers of the constitution were well aware that trade must be subjected to some form of
issued pursuant to this Code shall, upon conviction, be punished by a penalty of two regulation for the public good. Public interest must be upheld over business interests. 90 In Pest
(2) months to one (1) year imprisonment or a fine of not less than One Thousand Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held
Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. thus:
Should the offense be committed by a juridical person, the chairman of the Board of
Directors, the president, general manager, or the partners and/or the persons directly
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
responsible therefor, shall be penalized.
Philippine Coconut Authority, despite the fact that "our present Constitution
enshrines free enterprise as a policy, it nonetheless reserves to the government
(b) Any license, permit or authority issued by any government agency to any health the power to intervene whenever necessary to promote the general welfare."
worker, distributor, manufacturer, or marketing firm or personnel for the practice of There can be no question that the unregulated use or proliferation of pesticides would
their profession or occupation, or for the pursuit of their business, may, upon be hazardous to our environment. Thus, in the aforecited case, the Court declared that
recommendation of the Ministry of Health, be suspended or revoked in the event of "free enterprise does not call for removal of protective regulations." x x x It
repeated violations of this Code, or of the rules and regulations issued pursuant to this must be clearly explained and proven by competent evidence just exactly how
Code. (Emphasis supplied) such protective regulation would result in the restraint of trade. [Emphasis and
underscoring supplied]
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous. In this case, petitioner failed to show that the proscription of milk manufacturers participation in
any policymaking body (Section 4(i)), classes and seminars for women and children (Section
22); the giving of assistance, support and logistics or training (Section 32); and the giving of
Section 57 reads:
donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes.
Petitioner has not established that the proscribed activities are indispensable to the trade of
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the
parts thereof inconsistent with these revised rules and implementing regulations are RIRR are unreasonable and oppressive for being in restraint of trade.
hereby repealed or modified accordingly.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and oppressive. Said section provides for the definition of the term "milk company," to wit:
rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer,
An administrative agency like respondent possesses quasi-legislative or rule-making power or distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk
the power to make rules and regulations which results in delegated legislation that is within the substitute or replacement, or by any other description of such nature, including their
confines of the granting statute and the Constitution, and subject to the doctrine of non- representatives who promote or otherwise advance their commercial interests in
delegability and separability of powers.78 Such express grant of rule-making power necessarily marketing those products;
includes the power to amend, revise, alter, or repeal the same. 79 This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to
On the other hand, Section 4 of the Milk Code provides:
implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it is
a standard provision in administrative rules that prior issuances of administrative agencies that
are inconsistent therewith are declared repealed or modified. (d) "Distributor" means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the
wholesale or retail level a product within the scope of this Code. A "primary distributor"
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
is a manufacturer's sales agent, representative, national distributor or broker.
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
(j) "Manufacturer" means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent
x x x [T]he questioned RIRR sought to be implemented by the Respondents
or and entity controlled by or under contract with it) of manufacturing a products within
is unnecessary and oppressive, and is offensive to the due process clause of
the scope of this Code.
the Constitution, insofar as the same is in restraint of trade and because a
provision therein is inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a violation.81 (Emphasis supplied) Notably, the definition in the RIRR merely merged together under the term "milk company" the
entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR
also enumerated in Section 5(w) the products manufactured or distributed by an entity that
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions
would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase
that suppress the trade of milk and, thus, violate the due process clause of the Constitution.
"products within the scope of this Code." Those are the only differences between the definitions
given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in the RIRR would
bring about any change in the treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with
the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of

Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents are PROHIBITED from Republic of the Philippines
implementing said provisions. SUPREME COURT
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned. EN BANC

SO ORDERED. G.R. No. L-7995 May 31, 1957

Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations
Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, and partnerships adversely affected. by Republic Act No. 1180, petitioner,
JJ., concur. vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer
of Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for
respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.


I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses
questions of due process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the disputed law purports to remedy
really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic
impulse, the law purports to protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to translate national aspirations for
economic independence and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the national retailer from
the competing dominance of the alien, so that the country and the nation may be free from a requirements of due process and equal protection of the laws. But before proceeding to the
supposed economic dependence and bondage. Do the facts and circumstances justify the consideration and resolution of the ultimate issue involved, it would be well to bear in mind
enactment? certain basic and fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and equal protection
of the laws. What is the scope of police power, and how are the due process and equal
II. Pertinent provisions of Republic Act No. 1180
protection clauses related to it? What is the province and power of the legislature, and what is
the function and duty of the courts? These consideration must be clearly and correctly
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it understood that their application to the facts of the case may be brought forth with clarity and the
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition issue accordingly resolved.
against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from
It has been said the police power is so far - reaching in scope, that it has become almost
engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in
impossible to limit its sweep. As it derives its existence from the very existence of the State itself,
favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue
it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-
to engaged therein, unless their licenses are forfeited in accordance with the law, until their
protection and survival, and as such it is the most positive and active of all governmental
death or voluntary retirement in case of natural persons, and for ten years after the approval of
processes, the most essential, insistent and illimitable. Especially is it so under a modern
the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in
democratic framework where the demands of society and of nations have multiplied to almost
favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of
unimaginable proportions; the field and scope of police power has become almost boundless,
licenses (to engage in the retail business) for violation of the laws on nationalization, control
just as the fields of public interest and public welfare have become almost all-embracing and
weights and measures and labor and other laws relating to trade, commerce and industry; (5) a
have transcended human foresight. Otherwise stated, as we cannot foresee the needs and
prohibition against the establishment or opening by aliens actually engaged in the retail business
demands of public interest and welfare in this constantly changing and progressive world, so we
of additional stores or branches of retail business, (6) a provision requiring aliens actually
cannot delimit beforehand the extent or scope of police power by which and through which the
engaged in the retail business to present for registration with the proper authorities a verified
State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the
statement concerning their businesses, giving, among other matters, the nature of the business,
scope or extent of the police power of the State; what they do is to set forth the limitations
their assets and liabilities and their offices and principal offices of judicial entities; and (7) a
thereof. The most important of these are the due process clause and the equal protection
provision allowing the heirs of aliens now engaged in the retail business who die, to continue
such business for a period of six months for purposes of liquidation.

b. Limitations on police power.

III. Grounds upon which petition is based-Answer thereto

The basic limitations of due process and equal protection are found in the following provisions of
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
our Constitution:
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action
to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him, particularly city and municipal treasurers, from SECTION 1.(1) No person shall be deprived of life, liberty or property without due
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it process of law, nor any person be denied the equal protection of the laws. (Article III,
denies to alien residents the equal protection of the laws and deprives of their liberty and Phil. Constitution)
property without due process of law ; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international and treaty obligations of the
These constitutional guarantees which embody the essence of individual liberty and freedom in
Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of
democracies, are not limited to citizens alone but are admittedly universal in their application,
their retail business thru hereditary succession, and those requiring 100% Filipino capitalization
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
for a corporation or entity to entitle it to engage in the retail business, violate the spirit of
ed. 220, 226.)
Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

c. The, equal protection clause.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject The equal protection of the law clause is against undue favor and individual or class privilege, as
embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
hereditary succession, only the form is affected but the value of the property is not impaired, and legislation, which is limited either in the object to which it is directed or by territory within which is
the institution of inheritance is only of statutory origin. to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
IV. Preliminary consideration of legal principles involved
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for making a distinction between
a. The police power. those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations,
There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional d. The due process clause.
The due process clause has to do with the reasonableness of legislation enacted in pursuance the easy reach of consumers. Retail dealers perform the functions of capillaries in the human
of the police power. Is there public interest, a public purpose; is public welfare involved? Is the body, thru which all the needed food and supplies are ministered to members of the
Act reasonably necessary for the accomplishment of the legislature's purpose; is it not communities comprising the nation.
unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with
the matter involved; or has there not been a capricious use of the legislative power? Can the
There cannot be any question about the importance of the retailer in the life of the community.
aims conceived be achieved by the means used, or is it not merely an unjustified interference
He ministers to the resident's daily needs, food in all its increasing forms, and the various little
with private interest? These are the questions that we ask when the due process test is applied.
gadgets and things needed for home and daily life. He provides his customers around his store
with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He
The conflict, therefore, between police power and the guarantees of due process and equal has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out.
protection of the laws is more apparent than real. Properly related, the power and the The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the
guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the operator of a department store or, a supermarket is so much a part of day-to-day existence.
indispensable means for the attainment of legitimate aspirations of any democratic society.
There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can
b. The alien retailer's trait.
neither be absolute liberty, for that would mean license and anarchy. So the State can deprive
persons of life, liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal protection of the law. The alien retailer must have started plying his trades in this country in the bigger centers of
The test or standard, as always, is reason. The police power legislation must be firmly grounded population (Time there was when he was unknown in provincial towns and villages). Slowly but
on public interest and welfare, and a reasonable relation must exist between purposes and gradually be invaded towns and villages; now he predominates in the cities and big centers of
means. And if distinction and classification has been made, there must be a reasonable basis for population. He even pioneers, in far away nooks where the beginnings of community life appear,
said distinction. ministering to the daily needs of the residents and purchasing their agricultural produce for sale
in the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
e. Legislative discretion not subject to judicial review.

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred
must not be overlooked, in the first place, that the legislature, which is the constitutional
and insolent neighbors and customers are made in his face, but he heeds them not, and he
repository of police power and exercises the prerogative of determining the policy of the State, is
forgets and forgives. The community takes note of him, as he appears to be harmless and
by force of circumstances primarily the judge of necessity, adequacy or reasonableness and
extremely useful.
wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted
to implement the public policy or to achieve public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to c. Alleged alien control and dominance.
interfere with the exercise of the legislative prerogative. They have done so early where there
has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never There is a general feeling on the part of the public, which appears to be true to fact, about the
inquire into the wisdom of the law. controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him.
In big cities and centers of population he has acquired not only predominance, but apparent
V. Economic problems sought to be remedied control over distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control
With the above considerations in mind, we will now proceed to delve directly into the issue
over principal foods and products would easily become full and complete.
involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
no question that it falls within the legitimate scope of legislative power. But it goes further and
prohibits a group of residents, the aliens, from engaging therein. The problem becomes more Petitioner denies that there is alien predominance and control in the retail trade. In one breath it
complex because its subject is a common, trade or occupation, as old as society itself, which is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law
from the immemorial has always been open to residents, irrespective of race, color or is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not
citizenship. an element of control; also so many unmanageable factors in the retail business make control
virtually impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence of the
a. Importance of retail trade in the economy of the nation.
legislature and beyond our prerogative to pass upon and decide.

In a primitive economy where families produce all that they consume and consume all that they
The best evidence are the statistics on the retail trade, which put down the figures in black and
produce, the dealer, of course, is unknown. But as group life develops and families begin to live
white. Between the constitutional convention year (1935), when the fear of alien domination and
in communities producing more than what they consume and needing an infinite number of
control of the retail trade already filled the minds of our leaders with fears and misgivings, and
things they do not produce, the dealer comes into existence. As villages develop into big
the year of the enactment of the nationalization of the retail trade act (1954), official statistics
communities and specialization in production begins, the dealer's importance is enhanced.
unmistakably point out to the ever-increasing dominance and control by the alien of the retail
Under modern conditions and standards of living, in which man's needs have multiplied and
trade, as witness the following tables:
diversified to unlimited extents and proportions, the retailer comes as essential as the producer,
because thru him the infinite variety of articles, goods and needed for daily life are placed within
Assets Gross Sales Chinese ........................................... 7,707 14,934
Year and Retailers No.- Per cent Per cent
Pesos Pesos
Nationality Establishments Distribution Distribution Others .............................................. 24,749 13,919
1948: (Census)
Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74
Chinese ........... 15,356 118,348,692 32.98 148,813,239 44.21 Filipino ............................................. 1,878 4,111
Others ............ 1,646 40,187,090 11.20 13,630,239 4.05
Chinese ............................................. 7,707 24,398
Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03 Others .............................................. 24,916 23,686

Chinese ........... 13,774 106,156,218 33.56 205,701,134 41.96

Others ........... 354 8,761,260 .49 4,927,168 1.01
Filipino ............................................. 1,878 4,069
1948: (Census)
Filipino .......... 113,631 213,342,264 67.30 467,161,667 60.51 Chinese .............................................. 7,707 24,152
Chinese .......... 12,087 93,155,459 29.38 294,894,227 38.20
Others .............................................. 24,807 20,737
Others .......... 422 10,514,675 3.32 9,995,402 1.29
1949: 1951:
Filipino .......... 113,659 213,451,602 60.89 462,532,901 53.47
Filipino ............................................. 1,877 3,905
Chinese .......... 16,248 125,223,336 35.72 392,414,875 45.36
Others .......... 486 12,056,365 3.39 10,078,364 1.17 Chinese ............................................. 7,707 33,207

1951: Others ............................................... 24,824 22,033

Filipino ......... 119,352 224,053,620 61.09 466,058,052 53.07
Chinese .......... 17,429 134,325,303 36.60 404,481,384 46.06
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality
Others .......... 347 8,614,025 2.31 7,645,327 of
87Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
ASSETS AND GROSS SALES PER ESTABLISHMENT The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
Item edge in the number of retailers, but aliens more than make up for the numerical gap through
Year and Retailer's Gross Sales
Assets their assests and gross sales which average between six and seven times those of the very
Nationality (Pesos)
(Pesos) many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests
more capital, buys and sells six to seven times more, and gains much more. The same official
1941: report, pointing out to the known predominance of foreign elements in the retail trade, remarks
that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by
Filipino ............................................. 1,878 1,633 respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
Chinese .............................................. 7,707 9,691
d. Alien control and threat, subject of apprehension in Constitutional convention.
Others ............................................... 24,415 8,281
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
1947: legislature's target in the enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the existence of this alien dominance
Filipino ............................................. 1,878 2,516 and control when they approved a resolution categorically declaring among other things, that "it
is the sense of the Convention that the public interest requires the nationalization of the retail
trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 interests of truth and justice, that there exists a general feeling on the part of the public that alien
of Petitioner.) That was twenty-two years ago; and the events since then have not been either participation in the retail trade has been attended by a pernicious and intolerable practices, the
pleasant or comforting. Dean Sinco of the University of the Philippines College of Law, mention of a few of which would suffice for our purposes; that at some time or other they have
commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution cornered the market of essential commodities, like corn and rice, creating artificial scarcities to
were merely translating the general preoccupation of Filipinos "of the dangers from alien justify and enhance profits to unreasonable proportions; that they have hoarded essential foods
interests that had already brought under their control the commercial and other economic to the inconvenience and prejudice of the consuming public, so much so that the Government
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern has had to establish the National Rice and Corn Corporation to save the public from their
of the members of the constitutional convention for the economic life of the citizens, in continuous hoarding practices and tendencies; that they have violated price control laws,
connection with the nationalistic provisions of the Constitution, he says: especially on foods and essential commodities, such that the legislature had to enact a law (Sec.
9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price
control convictions; that they have secret combinations among themselves to control prices,
But there has been a general feeling that alien dominance over the economic life of
cheating the operation of the law of supply and demand; that they have connived to boycott
the country is not desirable and that if such a situation should remain, political
honest merchants and traders who would not cater or yield to their demands, in unlawful
independence alone is no guarantee to national stability and strength. Filipino private
restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax
capital is not big enough to wrest from alien hands the control of the national
laws, smuggled goods and money into and out of the land, violated import and export
economy. Moreover, it is but of recent formation and hence, largely inexperienced,
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also
timid and hesitant. Under such conditions, the government as the instrumentality of
believed that they have engaged in corrupting public officials with fabulous bribes, indirectly
the national will, has to step in and assume the initiative, if not the leadership, in the
causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to
struggle for the economic freedom of the nation in somewhat the same way that it did
unscrupulous aliens have been made both by the Government and by their own lawful
in the crusade for political freedom. Thus . . . it (the Constitution) envisages an
diplomatic representatives, action which impliedly admits a prevailing feeling about the existence
organized movement for the protection of the nation not only against the possibilities
of many of the above practices.
of armed invasion but also against its economic subjugation by alien interests in the
economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
therefore, becomes a potential source of danger on occasions of war or other calamity. We do
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
not have here in this country isolated groups of harmless aliens retailing goods among nationals;
control, and they express sentiments of economic independence. Witness thereto is Resolution
what we have are well organized and powerful groups that dominate the distribution of goods
No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and
and commodities in the communities and big centers of population. They owe no allegiance or
a similar resolution, approved on March 20, 1954, of the Second National Convention of
loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While
Manufacturers and Producers. The man in the street also believes, and fears, alien
the national holds his life, his person and his property subject to the needs of his country, the
predominance and control; so our newspapers, which have editorially pointed out not only to
alien may even become the potential enemy of the State.
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a
reality proved by official statistics, and felt by all the sections and groups that compose the
Filipino community. f. Law enacted in interest of national economic survival and security.

e. Dangers of alien control and dominance in retail. We are fully satisfied upon a consideration of all the facts and circumstances that the disputed
law is not the product of racial hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their authorized representatives, to free
But the dangers arising from alien participation in the retail trade does not seem to lie in the
the nation from the economic situation that has unfortunately been saddled upon it rightly or
predominance alone; there is a prevailing feeling that such predominance may truly endanger
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national
the national interest. With ample capital, unity of purpose and action and thorough organization,
security itself, and indisputably falls within the scope of police power, thru which and by which
alien retailers and merchants can act in such complete unison and concert on such vital matters
the State insures its existence and security and the supreme welfare of its citizens.
as the fixing of prices, the determination of the amount of goods or articles to be made available
in the market, and even the choice of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of the complete subservience of VI. The Equal Protection Limitation
national economy and of the consuming public are not entirely unfounded. Nationals, producers
and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose
a. Objections to alien participation in retail trade. The next question that now poses solution
an article of daily use is desired to be prescribed by the aliens, because the producer or importer
is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of
does not offer them sufficient profits, or because a new competing article offers bigger profits for
alienage is the root and cause of the distinction between the alien and the national as a trader.
its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it
The alien resident owes allegiance to the country of his birth or his adopted country; his stay
from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
here is for personal convenience; he is attracted by the lure of gain and profit. His aim or
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and
spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living,
free enterprise correspondingly suppressed.
or of that spirit of regard, sympathy and consideration for his Filipino customers as would
prevent him from taking advantage of their weakness and exploiting them. The faster he makes
We can even go farther than theoretical illustrations to show the pernicious influences of alien his pile, the earlier can the alien go back to his beloved country and his beloved kin and
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a countrymen. The experience of the country is that the alien retailer has shown such utter
fact within judicial notice, which courts of justice may not properly overlook or ignore in the
disregard for his customers and the people on whom he makes his profit, that it has been found The question as to whether or not citizenship is a legal and valid ground for classification has
necessary to adopt the legislation, radical as it may seem. already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
Another objection to the alien retailer in this country is that he never really makes a genuine
ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
contribution to national income and wealth. He undoubtedly contributes to general distribution,
Philippine Islands or the United States, thus denying the right to aliens, it was held that the
but the gains and profits he makes are not invested in industries that would help the country's
Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights.
economy and increase national wealth. The alien's interest in this country being merely transient
The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
and temporary, it would indeed be ill-advised to continue entrusting the very important function
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a
of retail distribution to his hands.
valid exercise of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged in coastwise
The practices resorted to by aliens in the control of distribution, as already pointed out above, trade to citizens of the Philippines does not violate the equal protection of the law and due
their secret manipulations of stocks of commodities and prices, their utter disregard of the process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
welfare of their customers and of the ultimate happiness of the people of the nation of which they approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat.,
are mere guests, which practices, manipulations and disregard do not attend the exercise of the I, as follows:
trade by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative classification
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
adopted in the retail trade measure. These differences are certainly a valid reason for the State
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this
to prefer the national over the alien in the retail trade. We would be doing violence to fact and
instance, is distinctly of that character, and forms part of an extensive system, the
reality were we to hold that no reason or ground for a legitimate distinction can be found
object of which is to encourage American shipping, and place them on an equal
between one and the other.
footing with the shipping of other nations. Almost every commercial nation reserves to
its own subjects a monopoly of its coasting trade; and a countervailing privilege in
b. Difference in alien aims and purposes sufficient basis for distinction. favor of American shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her enrollment.
The above objectionable characteristics of the exercise of the retail trade by the aliens, which
But it is to confer on her American privileges, as contra distinguished from foreign; and
are actual and real, furnish sufficient grounds for legislative classification of retail traders into to preserve the Government from fraud by foreigners; in surreptitiously intruding
nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To themselves into the American commercial marine, as well as frauds upon the revenue
this we answer, that this is the prerogative of the law-making power. Since the Court finds that in the trade coastwise, that this whole system is projected."
the classification is actual, real and reasonable, and all persons of one class are treated alike,
and as it cannot be said that the classification is patently unreasonable and unfounded, it is in
duty bound to declare that the legislature acted within its legitimate prerogative and it can not The rule in general is as follows:
declare that the act transcends the limit of equal protection established by the Constitution.
Aliens are under no special constitutional protection which forbids a classification
Broadly speaking, the power of the legislature to make distinctions and classifications among otherwise justified simply because the limitation of the class falls along the lines of
persons is not curtailed or denied by the equal protection of the laws clause. The legislative nationality. That would be requiring a higher degree of protection for aliens as a class
power admits of a wide scope of discretion, and a law can be violative of the constitutional than for similar classes than for similar classes of American citizens. Broadly
limitation only when the classification is without reasonable basis. In addition to the authorities speaking, the difference in status between citizens and aliens constitutes a basis for
we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.)
(1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of
hawkers and peddlers, which provided that no one can obtain a license unless he is, or has
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from declared his intention, to become a citizen of the United States, was held valid, for the following
the state the power to classify in the adoption of police laws, but admits of the exercise reason: It may seem wise to the legislature to limit the business of those who are supposed to
of the wide scope of discretion in that regard, and avoids what is done only when it is have regard for the welfare, good order and happiness of the community, and the court cannot
without any reasonable basis, and therefore is purely arbitrary. 2. A classification question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a
having some reasonable basis does not offend against that clause merely because it statute which prevented certain persons, among them aliens, from engaging in the traffic of
is not made with mathematical nicety, or because in practice it results in some liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to
inequality. 3. When the classification in such a law is called in question, if any state of discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our
facts reasonably can be conceived that would sustain it, the existence of that state of institutions and our life as to enable him to appreciate the relation of this particular business to
facts at the time the law was enacted must be assumed. 4. One who assails the our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
classification in such a law must carry the burden of showing that it does not rest upon 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
any reasonable basis but is essentially arbitrary." ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms)
to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a
c. Authorities recognizing citizenship as basis for classification.
legitimate object of legislation as to be made the basis of permitted classification, and that it
could not state that the legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative choice of methods for . . . . It may be judicially known, however, that alien coming into this country are
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a without the intimate knowledge of our laws, customs, and usages that our own people
parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the have. So it is likewise known that certain classes of aliens are of different psychology
business of pawn brooking was considered as having tendencies injuring public interest, and from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that
limiting it to citizens is within the scope of police power. A similar statute denying aliens the right the foreign born, whose allegiance is first to their own country, and whose ideals of
to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 governmental environment and control have been engendered and formed under
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said entirely different regimes and political systems, have not the same inspiration for the
that aliens are judicially known to have different interests, knowledge, attitude, psychology and public weal, nor are they as well disposed toward the United States, as those who by
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker, citizenship, are a part of the government itself. Further enlargement, is unnecessary. I
pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. have said enough so that obviously it cannot be affirmed with absolute confidence that
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the the Legislature was without plausible reason for making the classification, and
licensing of aliens as barbers was held void, but the reason for the decision was the court's therefore appropriate discriminations against aliens as it relates to the subject of
findings that the exercise of the business by the aliens does not in any way affect the morals, the legislation. . . . .
health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial
VII. The Due Process of Law Limitation.
fishing licenses to person ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the a. Reasonability, the test of the limitation; determination by legislature decisive.
discrimination. It further added that the law was the outgrowth of antagonism toward the persons
of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have
been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. We now come to due process as a limitation on the exercise of the police power. It has been
257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born stated by the highest authority in the United States that:
unnaturalized male persons over 21 years of age, was declared void because the court found
that there was no reason for the classification and the tax was an arbitrary deduction from the . . . . And the guaranty of due process, as has often been held, demands only that the
daily wage of an employee. law shall not be unreasonable, arbitrary or capricious, and that the means selected
shall have a real and substantial relation to the subject sought to be attained. . . . .
d. Authorities contra explained.
xxx xxx xxx
It is true that some decisions of the Federal court and of the State courts in the United States
hold that the distinction between aliens and citizens is not a valid ground for classification. But in So far as the requirement of due process is concerned and in the absence of other
this decision the laws declared invalid were found to be either arbitrary, unreasonable or constitutional restriction a state is free to adopt whatever economic policy may
capricious, or were the result or product of racial antagonism and hostility, and there was no reasonably be deemed to promote public welfare, and to enforce that policy by
question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 legislation adapted to its purpose. The courts are without authority either to declare
(1925), the United States Supreme Court declared invalid a Philippine law making unlawful the such policy, or, when it is declared by the legislature, to override it. If the laws passed
keeping of books of account in any language other than English, Spanish or any other local are seen to have a reasonable relation to a proper legislative purpose, and are neither
dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial
business there would be no other system of distribution, and (2) that the Chinese would fall prey determination to that effect renders a court functus officio. . . . (Nebbia vs. New York,
to all kinds of fraud, because they would be deprived of their right to be advised of their business 78 L. ed. 940, 950, 957.)
and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no
public benefit would be derived from the operations of the law and on the other hand it would
deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Another authority states the principle thus:
Hopkins, 30 L. ed 220 (1885) an ordinance conferring powers on officials to withhold consent in
the operation of laundries both as to persons and place, was declared invalid, but the court said . . . . Too much significance cannot be given to the word "reasonable" in considering
that the power granted was arbitrary, that there was no reason for the discrimination which the scope of the police power in a constitutional sense, for the test used to determine
attended the administration and implementation of the law, and that the motive thereof was mere the constitutionality of the means employed by the legislature is to inquire whether the
racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to restriction it imposes on rights secured to individuals by the Bill of Rights are
engage as hawkers and peddlers was declared void, because the discrimination bore no unreasonable, and not whether it imposes any restrictions on such rights. . . .
reasonable and just relation to the act in respect to which the classification was proposed.
xxx xxx xxx
The case at bar is radically different, and the facts make them so. As we already have said,
aliens do not naturally possess the sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, . . . . A statute to be within this power must also be reasonable in its operation upon
except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes the persons whom it affects, must not be for the annoyance of a particular class, and
to the land. These limitations on the qualifications of the aliens have been shown on many must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
occasions and instances, especially in times of crisis and emergency. We can do no better than
borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
significance of the distinction between the alien and the national, thus:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must In seeking to accomplish the foregoing purpose, we do not propose to deprive persons
appear, first, that the interests of the public generally, as distinguished from those of a who are not citizens of the Philippines of their means of livelihood. While this bill seeks
particular class, require such interference; and second, that the means are reasonably to take away from the hands of persons who are not citizens of the Philippines a
necessary for the accomplishment of the purpose, and not unduly oppressive upon power that can be wielded to paralyze all aspects of our national life and endanger our
individuals. . . . national security it respects existing rights.

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is
In determining whether a given act of the Legislature, passed in the exercise of the none the less legitimate. Freedom and liberty are not real and positive if the people are subject
police power to regulate the operation of a business, is or is not constitutional, one of to the economic control and domination of others, especially if not of their own race or country.
the first questions to be considered by the court is whether the power as exercised The removal and eradication of the shackles of foreign economic control and domination, is one
has a sufficient foundation in reason in connection with the matter involved, or is an of the noblest motives that a national legislature may pursue. It is impossible to conceive that
arbitrary, oppressive, and capricious use of that power, without substantial relation to legislation that seeks to bring it about can infringe the constitutional limitation of due process.
the health, safety, morals, comfort, and general welfare of the public. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative
b. Petitioner's argument considered.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.

Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free men;
that it is a gainful and honest occupation and therefore beyond the power of the legislature to The framers of the Constitution could not have intended to impose the constitutional restrictions
prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect of due process on the attainment of such a noble motive as freedom from economic control and
assumption and premise, i.e., that in this country where the occupation is engaged in by domination, thru the exercise of the police power. The fathers of the Constitution must have
petitioner, it has been so engaged by him, by the alien in an honest creditable and given to the legislature full authority and power to enact legislation that would promote the
unimpeachable manner, without harm or injury to the citizens and without ultimate danger to supreme happiness of the people, their freedom and liberty. On the precise issue now before us,
their economic peace, tranquility and welfare. But the Legislature has found, as we have also they expressly made their voice clear; they adopted a resolution expressing their belief that the
found and indicated, that the privilege has been so grossly abused by the alien, thru the legislation in question is within the scope of the legislative power. Thus they declared the their
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of Resolution:
the occupation and threatens a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.
That it is the sense of the Convention that the public interest requires the
nationalization of retail trade; but it abstain from approving the amendment introduced
The real question at issue, therefore, is not that posed by petitioner, which overlooks and by the Delegate for Manila, Mr. Araneta, and others on this matter because it is
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the convinced that the National Assembly is authorized to promulgate a law which limits to
retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego,
form and manner in which the aliens have heretofore engaged therein? As thus correctly stated The Framing of the Philippine Constitution, quoted on pages 66 and 67 of the
the answer is clear. The law in question is deemed absolutely necessary to bring about the Memorandum for the Petitioner.)
desired legislative objective, i.e., to free national economy from alien control and dominance. It is
not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp.
It would do well to refer to the nationalistic tendency manifested in various provisions of the
1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test,
the nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
disputed legislation, which is not merely reasonable but actually necessary, must be considered
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided
not to have infringed the constitutional limitation of reasonableness.
that "no franchise, certificate, or any other form of authorization for the operation of the public
utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade
The necessity of the law in question is explained in the explanatory note that accompanied the is only a continuance of the nationalistic protective policy laid down as a primary objective of the
bill, which later was enacted into law: Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many
of the provisions of the Constitution is unreasonable, invalid and unconstitutional?
This bill proposes to regulate the retail business. Its purpose is to prevent persons
who are not citizens of the Philippines from having a strangle hold upon our economic The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
life. If the persons who control this vital artery of our economic life are the ones who approval of the radical measures is, therefore, fully justified. It would have been recreant to its
owe no allegiance to this Republic, who have no profound devotion to our free duties towards the country and its people would it view the sorry plight of the nationals with the
institutions, and who have no permanent stake in our people's welfare, we are not complacency and refuse or neglect to adopt a remedy commensurate with the demands of
really the masters of our destiny. All aspects of our life, even our national security, will public interest and national survival. As the repository of the sovereign power of legislation, the
be at the mercy of other people. Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be
regulated. While word regulate does not ordinarily convey meaning of prohibit, there is
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable
no absolute reason why it should not have such meaning when used in delegating
the Legislature has been. The law is made prospective and recognizes the right and privilege of
police power in connection with a thing the best or only efficacious regulation of which
those already engaged in the occupation to continue therein during the rest of their lives; and
involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of
similar recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied to those only upon conviction of certain offenses. In the deliberations of the
Court on this case, attention was called to the fact that the privilege should not have been
denied to children and heirs of aliens now engaged in the retail trade. Such provision would The general rule is for the use of general terms in the title of a bill; it has also been said that the
defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
subject to judicial review. It is well settled that the Court will not inquire into the motives of the See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more
Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains
the judge of the necessity of an enactment or of any of its provisions, and every presumption is other rules for the regulation of the retail trade which may not be included in the terms
in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
law, it may not annul the legislation if not palpably in excess of the legislative power. "prohibit", there would have been many provisions not falling within the scope of the title which
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. principle governing the drafting of statutes, under which a simple or general term should be
These principles also answer various other arguments raised against the law, some of which adopted in the title, which would include all other provisions found in the body of the Act.
are: that the law does not promote general welfare; that thousands of aliens would be thrown out
of employment; that prices will increase because of the elimination of competition; that there is
One purpose of the constitutional directive that the subject of a bill should be embraced in its title
no need for the legislation; that adequate replacement is problematical; that there may be
is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent
general breakdown; that there would be repercussions from foreigners; etc. Many of these
the enactment into law of matters which have received the notice, action and study of the
arguments are directed against the supposed wisdom of the law which lies solely within the
legislators or of the public. In the case at bar it cannot be claimed that the legislators have been
legislative prerogative; they do not import invalidity.
appraised of the nature of the law, especially the nationalization and the prohibition provisions.
The legislators took active interest in the discussion of the law, and a great many of the persons
VIII. Alleged defect in the title of the law affected by the prohibitions in the law conducted a campaign against its approval. It cannot be
claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must
therefore, be overruled.
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to
nationalize the retail business and prohibit aliens from engaging therein. The constitutional IX. Alleged violation of international treaties and obligations
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
Another subordinate argument against the validity of the law is the supposed violation thereby of
No bill which may be enacted in the law shall embrace more than one subject which the Charter of the United Nations and of the Declaration of the Human Rights adopted by the
shall be expressed in the title of the bill. United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or
legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the
United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
more than a mere recommendation or a common standard of achievement for all peoples and all
legislators or the public of the nature, scope and consequences of the law or its operation (I
nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
Human Rights can be inferred the fact that members of the United Nations Organizations, such
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of
does not and may not readily and at first glance convey the idea of "nationalization" and
the world laws against foreigners engaged in domestic trade are adopted.
"prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always
been included within the term regulation. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April
18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same terms as the nationals of any
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature
other country." But the nationals of China are not discriminating against because nationals of all
may prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7;
other countries, except those of the United States, who are granted special rights by the
quoted in page 41 of Answer.)
Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law
infringes upon the said treaty, the treaty is always subject to qualification or amendment by a
Within the meaning of the Constitution requiring that the subject of every act of the subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
liquors, etc." sufficiently expresses the subject of an actprohibiting the sale of such
liquors to minors and to persons in the habit of getting intoxicated; such matters being
X. Conclusion
properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind.
306, 308, quoted in p. 42 of Answer.)
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a
real actual threat and danger to national economy posed by alien dominance and control of the
retail business and free citizens and country from dominance and control; that the enactment
clearly falls within the scope of the police power of the State, thru which and by which it protects
its own personality and insures its security and future; that the law does not violate the equal
protection clause of the Constitution because sufficient grounds exist for the distinction between
alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already
engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it
seems not only appropriate but actually necessary and that in any case such matter falls
within the prerogative of the Legislature, with whose power and discretion the Judicial
department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be void for supposed conflict
with treaty obligations because no treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or any other conventional

Some members of the Court are of the opinion that the radical effects of the law could have
been made less harsh in its impact on the aliens. Thus it is stated that the more time should
have been given in the law for the liquidation of existing businesses when the time comes for
them to close. Our legal duty, however, is merely to determine if the law falls within the scope of
legislative authority and does not transcend the limitations of due process and equal protection
guaranteed in the Constitution. Remedies against the harshness of the law should be addressed
to the Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Republic of the Philippines



G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary
of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary II. Exhaustion of administrative remedies.
of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.
Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
Ramon A. Gonzales in his own behalf as petitioner. administrative remedies available to him before coming to court". We have already held,
Office of the Solicitor General and Estanislao Fernandez for respondents. however, that the principle requiring the previous exhaustion of administrative remedies is not
applicable where the question in dispute is purely a legal one",3 or where the controverted act is
"patently illegal" or was performed without jurisdiction or in excess of jurisdiction, 4 or where the
respondent is a department secretary, whose acts as an alter-ego of the President bear the
implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there
This is an original action for prohibition with preliminary injunction. are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under
each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore,
It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a
rice procurement committee composed of the other respondents herein1 for the implementation III. Merits of petitioner's cause of action.
of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A.
Gonzales a rice planter, and president of the Iloilo Palay and Corn Planters Association,
Respondents question the sufficiency of petitioner's cause of action upon the theory that the
whose members are, likewise, engaged in the production of rice and corn filed the petition
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
herein, averring that, in making or attempting to make said importation of foreign rice, the
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the
aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because
exercise of his alleged authority under Section 2 of Commonwealth Act No. 1; 8 that in cases of
Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 explicitly
necessity, the President "or his subordinates may take such preventive measure for the
prohibits the importation of rice and corn "the Rice and Corn Administration or any other
restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our
government agency;" that petitioner has no other plain, speedy and adequate remedy in the
armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or
ordinary course of law; and that a preliminary injunction is necessary for the preservation of the
emergency without waiting for any special authority".
rights of the parties during the pendency this case and to prevent the judgment therein from
coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ
of preliminary injunction be forthwith issued restraining respondent their agents or Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
representatives from implementing the decision of the Executive Secretary to import the petitioner herein - on which our view need not be expressed we are unanimously of the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said opinion - assuming that said Republic Act No. 2207 is still in force that the two Acts are
injunction permanent. applicable to the proposed importation in question because the language of said laws is such as
to include within the purview thereof all importations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation
Forthwith, respondents were required to file their answer to the petition which they did, and
or government agency to import rice and corn into any point in the Philippines", although, by way
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
of exception, it adds, that "the President of the Philippines may authorize the importation of
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
these commodities through any government agency that he may designate", is the conditions
respondents. Considering, later on, that the resolution said incident may require some
prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly
pronouncements that would be more appropriate in a decision on the merits of the case, the
enjoins "the Rice and Corn Administration or any government agency" from importing rice and
same was set for hearing on the merits thereafter. The parties, however, waived the right to
argue orally, although counsel for respondents filed their memoranda.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
I. Sufficiency of petitioner's interest.
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government agency".
Respondents maintain that the status of petitioner as a rice planter does not give him sufficient This theory is devoid of merit. The Department of National Defense and the Armed Forces of the
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this Philippines, as well as respondents herein, and each and every officer and employee of our
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn Government, our government agencies and/or agents. The applicability of said laws even to
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1 importations by the Government as such, becomes more apparent when we consider that:
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of
Philippines who wish to dispose of their products at a price that will afford them a fair and just
the Philippines" and, hence, by or on behalf of the Government of the Philippines;
return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a
planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the
Government the rice it now seeks to buy abroad. Moreover, since the purchase of said 2. Immediately after enjoining the Rice and Corn administration and any other government
commodity will have to be effected with public funds mainly raised by taxation, and as a rice agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
producer and landowner petitioner must necessarily be a taxpayer, it follows that he has importation of rice and corn is left to private parties upon payment of the corresponding taxes",
sufficient personality and interest to seek judicial assistance with a view to restraining what he thus indicating that only "private parties" may import rice under its provisions; and
believes to be an attempt to unlawfully disburse said funds.
3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and Section 5 thereof specifies the manner in which resources necessary for our national defense
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is may be secured by the Government of the Philippines, but only "during a national
a public official and/or employees", he shall be subject to the additional penalty specified therein. mobilization",9 which does not exist. Inferentially, therefore, in the absence of a national
A public official is an officer of the Government itself, as distinguished from officers or employees mobilization, said resources shall be produced in such manner as Congress may by other laws
of instrumentalities of the Government. Hence, the duly authorized acts of the former are those provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and
of the Government, unlike those of a government instrumentality which may have a personality 3452, and Commonwealth Act No. 138 are such laws.
of its own, distinct and separate from that of the Government, as such. The provisions of
Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a
Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
similar additional penalty for any "officer or employee of the Government" who "violates, abets or
cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he
tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to
has placed the country or a part thereof under "martial law". 12 Since neither condition obtains in
transactions made by the very government is patent.
the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect,
place the Philippines under martial law, without a declaration of the Executive to that effect.
Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed What is worse, it would keep us perpetually under martial law.
in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:
It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207
and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the
The Purchase and Equipment Division of the Government of the Philippines and other people". Salus populi est suprema lex, it is said.
officers and employees of the municipal and provincial governments and the
Government of the Philippines and of chartered cities, boards, commissions, bureaus,
If there were a local shortage of rice, the argument might have some value. But the respondents,
departments, offices, agencies, branches, and bodies of any description, including
as officials of this Government, have expressly affirmed again and again that there is no rice
government-owned companies, authorized to requisition, purchase, or contract or
shortage. And the importation is avowedly for stockpile of the Army not the civilian population.
make disbursements for articles, materials, and supplies for public use, public
buildings, or public works shall give preference to materials ... produced ... in the
Philippines or in the United States, and to domestic entities, subject to the conditions But let us follow the respondents' trend of thought. It has a more serious implication that appears
hereinbelow specified. (Emphasis supplied.) on the surface. It implies that if an executive officer believes that compliance with a certain
statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we
still live under a rule of law.
Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The
importation involved in the case at bar violates this general policy of our Government, aside from And then, "the people" are either producers or consumers. Now as respondents explicitly
the provisions of Republic Acts Nos. 2207 and 3452. admit Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of
producers and consumers, i.e., the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.
The attempt to justify the proposed importation by invoking reasons of national security
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created
by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of It is not for respondent executive officers now to set their own opinions against that of the
all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner importation but under certain conditions, which have not been, and should be complied with.
that would foster and accelerate self-sufficiency in the local production of said commodities
constitutes a factor that is vital to our ability to meet possible national emergency. Even if the
IV. The contracts with Vietnam and Burma
intent in importing goods in anticipation of such emergency were to bolster up that ability, the
latter would, instead, be impaired if the importation were so made as to discourage our farmers
from engaging in the production of rice. It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Besides, the stockpiling of rice and corn for purpose of national security and/or national Government of Burma; that these contracts constitute valid executive agreements under
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such
quantities as it may deem proper and necessary to meet any contingencies". Moreover, it 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
ordains that "the buffer stocks held as a national reserve ... be deposited by the administration because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved
under the American jurisprudence in favor of the one which is latest in point of time; that
throughout the country under the proper dispersal plans ... and may be released only upon the
occurrence of calamities or emergencies ...". (Emphasis applied.) petitioner herein assails the validity of acts of the Executive relative to foreign relations in the
conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have
already been consummated, the Government of the Philippines having already paid the price of
Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so the rice involved therein through irrevocable letters of credit in favor of the sell of the said
much, are not self-executory. They merely outline the general objectives of said legislation. The commodity. We find no merit in this pretense.
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of,
The Court is not satisfied that the status of said tracts as alleged executive agreements has WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had
been sufficiently established. The parties to said contracts do not pear to have regarded the and has no power to authorize the importation in question; that he exceeded his jurisdiction in
same as executive agreements. But, even assuming that said contracts may properly granting said authority; said importation is not sanctioned by law and is contrary to its provisions;
considered as executive agreements, the same are unlawful, as well as null and void, from a and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly
constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts denied. It is so ordered.
Nos. 2207 and 3452. Although the President may, under the American constitutional system
enter into executive agreements without previous legislative authority, he may not, by executive
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under
Paredes and Regala, JJ., concur in the result.
the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The
former may not interfere in the performance of the legislative powers of the latter, except in the
exercise of his veto power. He may not defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for
respondents not only admit, but, also insist that the contracts adverted to are not treaties. Said
theory may be justified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not authorized
by previous legislation, without completely upsetting the principle of separation of powers and
the system of checks and balances which are fundamental in our constitutional set up and that
of the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the
law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All
cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question". In other words, our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our local
planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and
leaves such importations to private parties. The pivotal issue in this case is whether the
proposed importation which has not been consummated as yet is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation.
However, the majority favors the negative view, for which reason the injunction prayed for
cannot be granted.
that he had taken and finished in Spain, the course of "Bachillerato Superior"; that he was
approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central
University of Madrid where he studied and finished the law course graduating there as
"Licenciado En Derecho"; that thereafter he was allowed to practice the law profession in Spain;
and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions
between the Republic of the Philippines and the Spanish state, he is entitled to practice the law
profession in the Philippines without submitting to the required bar examinations.

After due consideration, the Court resolved to deny the petition on the following grounds:

(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between
the Republic of the Philippines and the Spanish State can not be invoked by applicant. Under
Article 11 thereof;

The Nationals of each of the two countries who shall have obtained recognition of the
validity of their academic degrees by virtue of the stipulations of this Treaty, can
practice their professions within the territory of the Other, . . .. (Emphasis supplied).

from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens
desiring to practice their profession in Spain, and the citizens of Spain desiring to practice their
professions in the Philippines. Applicant is a Filipino citizen desiring to practice the legal
profession in the Philippines. He is therefore subject to the laws of his own country and is not
entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines.

(2) Article I of the Treaty, in its pertinent part, provides .

The nationals of both countries who shall have obtained degree or diplomas to
practice the liberal professions in either of the Contracting States, issued by
competent national authorities, shall be deemed competent to exercise said
professions in the territory of the Other, subject to the laws and regulations of the
latter. . . ..

It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made
expressly subject to the laws and regulations of the contracting State in whose territory it is
Republic of the Philippines desired to exercise the legal profession; and Section 1 of Rule 127, in connection with Sections
SUPREME COURT 2,9, and 16 thereof, which have the force of law, require that before anyone can practice the
Manila legal profession in the Philippine he must first successfully pass the required bar examinations;
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the
August 15, 1961 Spanish State could not have been intended to modify the laws and regulations governing
admission to the practice of law in the Philippines, for the reason that the Executive Department
may not encroach upon the constitutional prerogative of the Supreme Court to promulgate rules
IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without for admission to the practice of law in the Philippines, the lower to repeal, alter or supplement
taking the examination. ARTURO EFREN GARCIA, petitioner. such rules being reserved only to the Congress of the Philippines. (See Sec. 13, Art VIII, Phil.
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad,
BARRERA, J.: JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without
submitting to the required bar examinations. In his verified petition, he avers, among others, that
he is a Filipino citizen born in Bacolor City, Province of Negros Occidental, of Filipino parentage;
the Government of the Republic of the Philippines and the Government of the United States of
America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of
Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed
its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting
State). Kycalr

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.
S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the following provisions of the United
States Code (USC):

A)......18 USC 371 (Conspiracy to commit offense or to defraud the United

States; two [2] counts; Maximum Penalty 5 years on each count);

B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;
Maximum Penalty 5 years on each count);

C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty 5 years on each count);
[G.R. No. 139465. January 18, 2000]
D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Penalty 5 years on each count);
Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. Esmso
E)......2 USC 441f (Election contributions in name of another; thirty-three
DECISION [33] counts; Maximum Penalty less than one year).

MELO, J.: (p. 14, Rollo.)

The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming On the same day, petitioner issued Department Order No. 249 designating and authorizing a
powers of government. His only guarantee against oppression and tyranny are his fundamental panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
liberties under the Bill of Rights which shield him in times of need. The Court is now called to Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and
decide whether to uphold a citizens basic due process rights, or the governments ironclad duties assessment" of the extradition request and the documents in support thereof. The panel found
under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of that the "official English translation of some documents in Spanish were not attached to the
the fundamental writ. request and that there are some other matters that needed to be addressed" (p. 15,
Rollo). Calrky
The petition at our doorstep is cast against the following factual backdrop:
Pending evaluation of the aforestated extradition documents, private respondent, through
counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
extradition request from the U. S. Government, as well as all documents and papers submitted
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
therewith; and that he be given ample time to comment on the request after he shall have
Foreign Country". The Decree is founded on: the doctrine of incorporation under the
received copies of the requested papers. Private respondent also requested that the
Constitution; the mutual concern for the suppression of crime both in the state where it was
proceedings on the matter be held in abeyance in the meantime.
committed and the state where the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other
interested countries; and the need for rules to guide the executive department and the courts in Later, private respondent requested that preliminarily, he be given at least a copy of, or access
the proper implementation of said treaties. to, the request of the United States Government, and after receiving a copy of the Diplomatic
Note, a period of time to amplify on his request.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between
In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated July 13, Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing for mandamus (to compel herein petitioner to furnish private respondent the extradition
requests for the following reasons: documents, to give him access thereto, and to afford him an opportunity to comment on, or
oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioners letter dated July 13, 1999); and prohibition
1. We find it premature to furnish you with copies of the extradition request
(to restrain petitioner from considering the extradition request and from filing an extradition
and supporting documents from the United States Government, pending
petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
evaluation by this Department of the sufficiency of the extradition
performing any act directed to the extradition of private respondent to the United States), with an
documents submitted in accordance with the provisions of the extradition
application for the issuance of a temporary restraining order and a writ of preliminary injunction
treaty and our extradition law. Article 7 of the Extradition Treaty between the
(pp. 104-105, Rollo). Scslx
Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents
submitted shall be received and admitted as evidence. Evidentiary The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
requirements under our domestic law are also set forth in Section 4 of P.D. Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
No. 1069. Ralph C. Lantion.

Evaluation by this Department of the aforementioned documents is not a After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared
preliminary investigation nor akin to preliminary investigation of criminal in his own behalf, moved that he be given ample time to file a memorandum, but the same was
cases. We merely determine whether the procedures and requirements denied.
under the relevant law and treaty have been complied with by the
Requesting Government. The constitutionally guaranteed rights of the
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
accused in all criminal prosecutions are therefore not available.

WHEREFORE, this Court hereby Orders the respondents, namely: the

It is only after the filing of the petition for extradition when the person sought
Secretary of Justice, the Secretary of Foreign Affairs and the Director of the
to be extradited will be furnished by the court with copies of the petition,
National Bureau of Investigation, their agents and/or representatives to
request and extradition documents and this Department will not pose any
maintain the status quo by refraining from committing the acts complained
objection to a request for ample time to evaluate said documents. Mesm
of; from conducting further proceedings in connection with the request of the
United States Government for the extradition of the petitioner; from filing the
2. The formal request for extradition of the United States contains grand jury corresponding Petition with a Regional Trial court; and from performing any
information and documents obtained through grand jury process covered by act directed to the extradition of the petitioner to the United States, for a
strict secrecy rules under United States law. The United States had to period of twenty (20) days from service on respondents of this Order,
secure orders from the concerned District Courts authorizing the United pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
States to disclose certain grand jury information to Philippine government
and law enforcement personnel for the purpose of extradition of Mr.
The hearing as to whether or not this Court shall issue the preliminary
Jimenez. Any further disclosure of the said information is not authorized by
injunction, as agreed upon by the counsels for the parties herein, is set on
the United States District Courts. In this particular extradition request the
August 17, 1999 at 9:00 oclock in the morning. The respondents are,
United States Government requested the Philippine Government to prevent
likewise, ordered to file their written comment and/or opposition to the
unauthorized disclosure of the subject information. This Departments denial
issuance of a Preliminary Injunction on or before said date.
of your request is consistent with Article 7 of the RP-US Extradition Treaty
which provides that the Philippine Government must represent the interests
of the United States in any proceedings arising out of a request for SO ORDERED.
extradition. The Department of Justice under P.D. No. 1069 is the counsel
of the foreign governments in all extradition requests.
(pp. 110-111, Rollo.)

3. This Department is not in a position to hold in abeyance proceedings in

connection with an extradition request. Article 26 of the Vienna Convention Forthwith, petitioner initiated the instant proceedings, arguing that:
on the Law of Treaties, to which we are a party provides that "[E]very treaty
in force is binding upon the parties to it and must be performed by them in PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
good faith". Extradition is a tool of criminal law enforcement and to be JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
effective, requests for extradition or surrender of accused or convicted TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
persons must be processed expeditiously. TEMPORARY RESTRAINING ORDER BECAUSE: Slxs c

(pp. 77-78, Rollo.) I.

Such was the state of affairs when, on August 6, 1999, private respondent filed with the
Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot
THE ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING and academic (the issues of which are substantially the same as those before us now), while a
PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION negative resolution would call for the immediate lifting of the TRO issued by this Court dated
REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the
RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR extradition petition with the proper regional trial court. Corollarily, in the event that private
OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF respondent is adjudged entitled to basic due process rights at the evaluation stage of the
MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND extradition proceedings, would this entitlement constitute a breach of the legal commitments and
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; that the result would indeed be a breach, is there any conflict between private respondents basic
due process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition
therein, and of the issuance of the TRO of August 17, 1999 by the trial court. Missdaa

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with
ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND the object of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a charged
and not convicted individual, are abstracted as follows:

The request is made by the Foreign Diplomat of the Requesting State, addressed to the
(pp. 19-20, Rollo.) Secretary of Foreign Affairs, and shall be accompanied by:

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by
prayed for, was a temporary restraining order (TRO) providing: slx mis the authority of the Requesting State having jurisdiction over the matter, or some other
instruments having equivalent legal force;
NOW, THEREFORE, effective immediately and continuing until further
orders from this Court, You, Respondent Judge Ralph C. Lantion, your 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the
agents, representatives or any person or persons acting in your place or name and identity of the accused, his whereabouts in the Philippines, if known, the acts or
stead are hereby ORDERED to CEASE and DESIST from enforcing the omissions complained of, and the time and place of the commission of these acts; Sda adsc
assailed order dated August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.
3. The text of the applicable law or a statement of the contents of said law, and the designation
or description of the offense by the law, sufficient for evaluation of the request; and
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme
Court of the Philippines, this 17th day of August 1999.
4. Such other documents or information in support of the request.
(pp. 120-121, Rollo.)
(Section 4, Presidential Decree No. 1069.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed,
filed their respective memoranda. Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign
Affairs, pertinently provides:
From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request
to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition fails to meet the requirements of this law and the relevant treaty or
proceedings, is private respondent entitled to the two basic due process rights of notice and convention, he shall forward the request together with the related
documents to the Secretary of Justice, who shall immediately designate and Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
authorize an attorney in his office to take charge of the case. supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer
The above provision shows only too clearly that the executive authority given the task of
designated shall then file a written petition with the proper regional trial court of the province or
evaluating the sufficiency of the request and the supporting documents is the Secretary of
city, with a prayer that the court take the extradition request under consideration (Paragraph
Foreign Affairs. What then is the coverage of this task?
[2], ibid.). Korte

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as
authority must ascertain whether or not the request is supported by:
soon as practicable, issue an order summoning the prospective extraditee to appear and to
answer the petition on the day and hour fixed in the order. The judge may issue a warrant of
1. Documents, statements, or other types of information which describe the identity and probable arrest if it appears that the immediate arrest and temporary detention of the accused will best
location of the person sought; serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.
2. A statement of the facts of the offense and the procedural history of the case;
The Extradition Hearing
3. A statement of the provisions of the law describing the essential elements of the offense for
which extradition is requested; The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and
4. A statement of the provisions of law describing the punishment for the offense; Rtc spped not inconsistent with the summary nature of the proceedings, shall apply. During the hearing,
Section 8 of the Decree provides that the attorney having charge of the case may, upon
5. A statement of the provisions of the law describing any time limit on the prosecution or the application by the Requesting State, represent the latter throughout the proceedings.
execution of punishment for the offense;
Upon conclusion of the hearing, the court shall render a decision granting the extradition and
6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the
of said Article, as applicable. petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned
(Paragraph 2, Article 7, Presidential Decree No. 1069.) appeal, except for the required 15-day period to file brief (Section 13, ibid.).

7. Such evidence as, according to the law of the Requested State, would provide probable The trial court determines whether or not the offense mentioned in the petition is extraditable
cause for his arrest and committal for trial if the offense had been committed there; based on the application of the dual criminality rule and other conditions mentioned in Article 2 of
the RP-US Extradition Treaty. The trial court also determines whether or not the offense for
8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition
9. A copy of the charging document.
With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation stage
(Paragraph 3, ibid.) of the extradition proceedings? Sclaw

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice
documents received in support of the request had been certified by the principal diplomatic or is to file the extradition petition after the request and all the supporting papers are forwarded to
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that the offense is a military
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if offense which is not punishable under non-military penal legislation. Ipso facto, as expressly
the executive authority of the Requested State determines that the request is politically provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
motivated, or that the offense is a military offense which is not punishable under non-military ministerial duty of filing the extradition papers.
penal legislation."
However, looking at the factual milieu of the case before us, it would appear that there was
The Extradition Petition failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
evaluating the same and its accompanying documents. The statement of an assistant secretary useful aid or tool in an administrative agencys performance of its rule-making or quasi-judicial
at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a functions. Notably, investigation is indispensable to prosecution.
post office, for which reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
functions of an investigatory body with the sole power of investigation. It does not exercise
completeness of the documents and to evaluate the same to find out whether they comply with
judicial functions and its power is limited to investigating the facts and making findings in respect
the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner
thereto. The Court laid down the test of determining whether an administrative body is exercising
ratiocinates in this connection that although the Department of Justice had no obligation to
judicial functions or merely investigatory functions: Adjudication signifies the exercise of power
evaluate the extradition documents, the Department also had to go over them so as to be able to
and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the
prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this
only purpose for investigation is to evaluate evidence submitted before it based on the facts and
stage where private respondent insisted on the following: (1) the right to be furnished the request
circumstances presented to it, and if the agency is not authorized to make a final
and the supporting papers; (2) the right to be heard which consists in having a reasonable period
pronouncement affecting the parties, then there is an absence of judicial discretion and
of time to oppose the request, and to present evidence in support of the opposition; and (3) that
judgment. Mse sm
the evaluation proceedings be held in abeyance pending the filing of private respondent's
opposition to the request. Kyle
The above description in Ruperto applies to an administrative body authorized to evaluate
extradition documents. The body has no power to adjudicate in regard to the rights and
The two Departments seem to have misread the scope of their duties and authority, one
obligations of both the Requesting State and the prospective extraditee. Its only power is to
abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs,
determine whether the papers comply with the requirements of the law and the treaty and,
moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
petition as its own, indirectly conveying the message that if it were to evaluate the extradition
and not final. The body has no power to determine whether or not the extradition should be
request, it would not allow private respondent to participate in the process of evaluation.
effected. That is the role of the court. The bodys power is limited to an initial finding of whether
or not the extradition petition can be filed in court.
Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
arrived at a well-founded judgment that the request and its annexed documents satisfy the
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
privately review the papers all by himself. He had to officially constitute a panel of attorneys.
deprivation can be effected at two stages: First, the provisional arrest of the prospective
How then could the DFA Secretary or his undersecretary, in less than one day, make the more
extraditee pending the submission of the request. This is so because the Treaty provides that in
authoritative determination?
case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. shall be automatically discharged after 60 days if no request is submitted (Paragraph 4).
It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
exercise of ministerial functions. At such stage, the executive authority has the power: (a) to person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on
make a technical assessment of the completeness and sufficiency of the extradition papers; (b) this respect, the provisions only mean that once a request is forwarded to the Requested State,
to outrightly deny the request if on its face and on the face of the supporting documents the the prospective extraditee may be continuously detained, or if not, subsequently rearrested
crimes indicated are not extraditable; and (c) to make a determination whether or not the request (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request
is politically motivated, or that the offense is a military one which is not punishable under non- is submitted. Practically, the purpose of this detention is to prevent his possible flight from the
military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article Requested State. Second, the temporary arrest of the prospective extraditee during the
3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).
inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative
bodys quasi-judicial power. Ex sm
Clearly, there is an impending threat to a prospective extraditees liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Sc lex
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence;
(b) determining facts based upon the evidence presented; and (c) rendering an order or decision
Because of these possible consequences, we conclude that the evaluation process is akin to an
supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
administrative agency conducting an investigative proceeding, the consequences of which are
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
essentially criminal since such technical assessment sets off or commences the procedure for,
examining or investigatory power, is one of the determinative powers of an administrative body
and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner
which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we
and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or
had occasion to make available to a respondent in an administrative case or investigation certain
to require disclosure of information by means of accounts, records, reports, testimony of
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed
witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).
out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at
the trial stage that had been advanced to an earlier stage in the proceedings, such as the right
to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135;Escobedo vs.
Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against The due process clauses in the American and Philippine Constitutions are not only worded in
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily exactly identical language and terminology, but more importantly, they are alike in what their
available only in criminal prosecutions, extends to administrative proceedings which possess a respective Supreme Courts have expounded as the spirit with which the provisions are informed
criminal or penal aspect, such as an administrative investigation of a licensed physician who is and impressed, the elasticity in their interpretation, their dynamic and resilient character which
charged with immorality, which could result in his loss of the privilege to practice medicine if make them capable of meeting every modern problem, and their having been designed from
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), earliest time to the present to meet the exigencies of an undefined and expanding future. The
pointed out that the revocation of ones license as a medical practitioner, is an even greater requirements of due process are interpreted in both the United States and the Philippines as not
deprivation than forfeiture of property. denying to the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause "gradually ascertained by the process of inclusion and exclusion in the
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel
therein ruled that since the investigation may result in forfeiture of property, the administrative
and Motel Owners Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty.
certain immutable principles of justice which inhere in the very idea of free government (Holden
There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
vs. Hardy, 169 U.S. 366).
citing American jurisprudence, laid down the test to determine whether a proceeding is civil or
criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although it may be Due process is comprised of two components substantive due process which requires the
civil in form; and where it must be gathered from the statute that the action is meant to be intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property,
criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not and procedural due process which consists of the two basic rights of notice and hearing, as well
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional
nature. x law Law, 1993 Ed., pp. 102-106).

The cases mentioned above refer to an impending threat of deprivation of ones property or True to the mandate of the due process clause, the basic rights of notice and hearing pervade
property right. No less is this true, but even more so in the case before us, involving as it does not only in criminal and civil proceedings, but in administrative proceedings as well. Non-
the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected observance of these rights will invalidate the proceedings. Individuals are entitled to be notified
rights, is placed second only to life itself and enjoys precedence over property, for while forfeited of any pending case affecting their interests, and upon notice, they may claim the right to appear
property can be returned or replaced, the time spent in incarceration is irretrievable and beyond therein and present their side and to refute the position of the opposing parties (Cruz, Phil.
recompense. Administrative Law, 1996 ed., p. 64).

By comparison, a favorable action in an extradition request exposes a person to eventual In a preliminary investigation which is an administrative investigatory proceeding, Section 3,
extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the Rule 112 of the Rules of Court guarantees the respondents basic due process rights, granting
process. In this sense, the evaluation procedure is akin to a preliminary investigation since both him the right to be furnished a copy of the complaint, the affidavits, and other supporting
procedures may have the same result the arrest and imprisonment of the respondent or the documents, and the right to submit counter-affidavits and other supporting documents within ten
person charged. Similar to the evaluation stage of extradition proceedings, a preliminary days from receipt thereof. Moreover, the respondent shall have the right to examine all other
investigation, which may result in the filing of an information against the respondent, can evidence submitted by the complainant. Scmis
possibly lead to his arrest, and to the deprivation of his liberty.
These twin rights may, however, be considered dispensable in certain instances, such as:
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, Petitioners
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
1. In proceedings where there is an urgent need for immediate action, like the summary
procedural statute is not well-taken. Wright is not authority for petitioners conclusion that his
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
servant facing administrative charges (Section 63, Local Government Code, B. P. Blg. 337), the
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It
padlocking of filthy restaurants or theaters showing obscene movies or like establishments which
had nothing to do with the denial of the right to notice, information, and hearing.
are immediate threats to public health and decency, and the cancellation of a passport of a
person sought for criminal prosecution;
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
2. Where there is tentativeness of administrative action, that is, where the respondent is not
legislative power, in furtherance of the general public good, which regards and preserves these
precluded from enjoying the right to notice and hearing at a later time without prejudice to the
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California,
person affected, such as the summary distraint and levy of the property of a delinquent taxpayer,
110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
and the replacement of a temporary appointee; and
with treaty commitments.

3. Where the twin rights have previously been offered but the right to exercise them had not
The United States and the Philippines share a mutual concern about the suppression and
been claimed.
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens. Sc
Applying the above principles to the case at bar, the query may be asked: Does the evaluation 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective
stage of the extradition proceedings fall under any of the described situations mentioned above? extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider
the evidence offered in support of the extradition request (Ibid.)
Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government. Mis sc 4. At the hearing, the court must determine whether the person arrested is extraditable to the
foreign country. The court must also determine that (a) it has jurisdiction over the defendant and
jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the
American jurisprudence distinguishes between interstate rendition or extradition which is based
applicable treaty permits extradition; and (c) there is probable cause to believe that the
on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition
defendant is the person sought and that he committed the offenses charged (Ibid.) Spped
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest purpose, which is to effect the 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having
return as swiftly as possible of persons for trial to the state in which they have been charged with received a "complaint made under oath, charging any person found within his jurisdiction" with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the having committed any of the crimes provided for by the governing treaty in the country
requisition papers or the demand must be in proper form, and all the elements or jurisdictional requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions
facts essential to the extradition must appear on the face of the papers, such as the allegation pronounce that international extradition proceedings partake of the character of a preliminary
that the person demanded was in the demanding state at the time the offense charged was examination before a committing magistrate, rather than a trial of the guilt or innocence of the
committed, and that the person demanded is charged with the commission of the crime or that alleged fugitive (31A Am Jur 2d 826).]
prosecution has been begun in the demanding state before some court or magistrate
(35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum
6. If the court decides that the elements necessary for extradition are present, it incorporates its
state, and must contain such papers and documents prescribed by statute, which essentially
determinations in factual findings and conclusions of law and certifies the persons extraditability.
include a copy of the instrument charging the person demanded with a crime, such as an
The court then forwards this certification of extraditability to the Department of State for
indictment or an affidavit made before a magistrate. Statutory requirements with respect to said
disposition by the Secretary of State. The ultimate decision whether to surrender an individual
charging instrument or papers are mandatory since said papers are necessary in order to confer
rests with the Secretary of State (18 U.S.C. 3186).
jurisdiction on the governor of the asylum state to effect the extradition (35 C.J.S. 408-410). A
statutory provision requiring duplicate copies of the indictment, information, affidavit, or
judgment of conviction or sentence and other instruments accompanying the demand or 7. The subject of an extradition request may not litigate questions concerning the motives of the
requisitions be furnished and delivered to the fugitive or his attorney is directory. requesting government in seeking his extradition. However, a person facing extradition may
However, the right being such a basic one has been held to be a right mandatory on present whatever information he deems relevant to the Secretary of State, who makes the final
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte determination whether to surrender an individual to the foreign government concerned.
Tucker, Cr., 324, S.W.2d 853). Mis spped
From the foregoing, it may be observed that in the United States, extradition begins and ends
In international proceedings, extradition treaties generally provide for the presentation to the with one entity the Department of State which has the power to evaluate the request and the
executive authority of the Requested State of a requisition or demand for the return of the extradition documents in the beginning, and, in the person of the Secretary of State, the power
alleged offender, and the designation of the particular officer having authority to act in behalf of to act or not to act on the courts determination of extraditability. In the Philippine setting, it is the
the demanding nation (31A Am Jur 2d 815). Department of Foreign Affairs which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request
to the Department of Justice for the preparation and filing of the petition for extradition. Sadly,
In petitioners memorandum filed on September 15, 1999, he attached thereto a letter dated
however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing
request to the Department of Justice which has taken over the task of evaluating the request as
the U.S. extradition procedures and principles, which are basically governed by a combination of
well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for
treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial
extradition. Jo spped
decisions, to wit:

Private respondent asks what prejudice will be caused to the U.S. Government should the
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases,
person sought to be extradited be given due process rights by the Philippines in the evaluation
requests for the provisional arrest of an individual may be made directly by the Philippine
stage. He emphasizes that petitioners primary concern is the possible delay in the evaluation
Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a
provisional arrest, a formal request for extradition is transmitted subsequently through the
diplomatic channel.
We agree with private respondents citation of an American Supreme Court ruling:
2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration The establishment of prompt efficacious procedures to achieve legitimate
confirming that a formal request has been made, that the treaty is in full force and effect, that state ends is a proper state interest worthy of cognizance in constitutional
under Article 17 thereof the parties provide reciprocal legal representation in extradition adjudication. But the Constitution recognizes higher values than speed and
proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and
that the documents have been authenticated in accordance with the federal statute that ensures the Due Process Clause, in particular, that they were designed to protect
admissibility at any subsequent extradition hearing. the fragile values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy that may characterize praiseworthy government period of time due to its intricacies, how then can we say that it is a proceeding that urgently
officials no less, and perhaps more, than mediocre ones. necessitates immediate and prompt action where notice and hearing can be dispensed with?

(Stanley vs. Illinois, 404 U.S. 645, 656) Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure.
The United States, no doubt, shares the same interest as the Philippine
On one hand, there is yet no extraditee, but ironically on the other, it results in an administrative
Government that no right that of liberty secured not only by the Bills of
determination which, if adverse to the person involved, may cause his immediate incarceration.
Rights of the Philippines Constitution but of the United States as well, is
The grant of the request shall lead to the filing of the extradition petition in court. The "accused"
sacrificed at the altar of expediency.
(as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation proceeding itself by
(pp. 40-41, Private Respondents Memorandum.) Spped jo virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice
to the "accused" is thus blatant and manifest.
In the Philippine context, this Courts ruling is invoked:
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed
with and shelved aside.
One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means Apart from the due process clause of the Constitution, private respondent likewise invokes
employed to pursue it be in keeping with the Constitution. Mere expediency Section 7 of Article III which reads: Nex old
will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only
Sec. 7. The right of the people to information on matters of public concern
to a few notable exceptions, will excuse the bypassing of an individuals
shall be recognized. Access to official records, and to documents and
rights. It is no exaggeration to say that a person invoking a right guaranteed
papers pertaining to official acts, transactions, or decisions, as well as to
under Article III of the Constitution is a majority of one even as against the
government research data used as basis for policy development, shall be
rest of the nation who would deny him that right (Association of Small
afforded the citizen, subject to such limitations as may be provided by law.
Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175
SCRA 343, 375-376 [1989]).
The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of
There can be no dispute over petitioners argument that extradition is a tool of criminal law
access to official records and documents. The general right guaranteed by said provision is the
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
right to information on matters of public concern. In its implementation, the right of access to
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked
official records is likewise conferred. These cognate or related rights are "subject to limitations
proceedings and adherence to fair procedures are, however, not always incompatible. They do
as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed.,
not always clash in discord. Summary does not mean precipitous haste. It does not carry a
p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which
disregard of the basic principles inherent in "ordered liberty." Miso
alone can protect the values of democratic government (Ibid.).

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is
Petitioner argues that the matters covered by private respondents letter-request dated July 1,
no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
1999 do not fall under the guarantee of the foregoing provision since the matters contained in
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
the documents requested are not of public concern. On the other hand, private respondent
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition
argues that the distinction between matters vested with public interest and matters which are of
papers, he may hold that federal and statutory requirements, which are significantly
purely private interest only becomes material when a third person, who is not directly affected by
jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the
the matters requested, invokes the right to information. However, if the person invoking the right
executive authority of the requested state has the power to deny the behest from the requesting
is the one directly affected thereby, his right to information becomes absolute.
state. Accordingly, if after a careful examination of the extradition documents the Secretary of
Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he
shall not forward the request to the Department of Justice for the filing of the extradition petition The concept of matters of public concern escapes exact definition. Strictly speaking, every act of
since non-compliance with the aforesaid requirements will not vest our government with a public officer in the conduct of the governmental process is a matter of public concern (Bernas,
jurisdiction to effect the extradition. The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept
embraces a broad spectrum of subjects which the public may want to know, either because
these directly affect their lives or simply because such matters arouse the interest of an ordinary
In this light, it should be observed that the Department of Justice exerted notable efforts in
citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in
assuring compliance with the requirements of the law and the treaty since it even informed the
interest is the people and any citizen has "standing".Mani kx
U.S. Government of certain problems in the extradition papers (such as those that are in
Spanish and without the official English translation, and those that are not properly
authenticated). In fact, petitioner even admits that consultation meetings are still supposed to When the individual himself is involved in official government action because said action has a
take place between the lawyers in his Department and those from the U.S. Justice Department. direct bearing on his life, and may either cause him some kind of deprivation or injury, he
With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly
the right to information on matters of public concern. As to an accused in a criminal proceeding, international law has been made part of the law of the land does not pertain to or imply the
he invokes Section 14, particularly the right to be informed of the nature and cause of the primacy of international law over national or municipal law in the municipal sphere. The doctrine
accusation against him. of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may
The right to information is implemented by the right of access to information within the control of
repeal a treaty. In states where the constitution is the highest law of the land, such as the
the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p.
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict
337). Such information may be contained in official records, and in documents and papers
with the constitution (Ibid.). Manikan
pertaining to official acts, transactions, or decisions.

In the case at bar, is there really a conflict between international law and municipal or national
In the case at bar, the papers requested by private respondent pertain to official government
law? En contrario, these two components of the law of the land are not pitted against each other.
action from the U. S. Government. No official action from our country has yet been taken.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
Moreover, the papers have some relation to matters of foreign relations with the U. S.
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
Government. Consequently, if a third party invokes this constitutional provision, stating that the
regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition papers are matters of public concern since they may result in the extradition of a
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition
Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
petition and during the judicial determination of the propriety of extradition, the rights of notice
interests necessary for the proper functioning of the government. During the evaluation
and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is
procedure, no official governmental action of our own government has as yet been done; hence
silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.
the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The extradition of a fellow Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
Filipino would be forthcoming. evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.
We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondents entitlement to notice and hearing during the evaluation stage of the We disagree.
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-
Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between
In the absence of a law or principle of law, we must apply the rules of fair play. An application of
the treaty and the due process clause in the Constitution?
the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
First and foremost, let us categorically say that this is not the proper time to pass upon the prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law proscription. In fact, in interstate extradition proceedings as explained above, the prospective
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of extraditee may even request for copies of the extradition documents from the governor of the
notice and hearing to private respondent on foreign relations. Maniks asylum state, and if he does, his right to be supplied the same becomes a demandable right
(35 C.J.S. 410).
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The Petitioner contends that the United States requested the Philippine Government to prevent
observance of our country's legal duties under a treaty is also compelled by Section 2, Article II unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of
of the Constitution which provides that "[t]he Philippines renounces war as an instrument of the Department of Justice Panel of Attorneys. The confidentiality argument is, however,
national policy, adopts the generally accepted principles of international law as part of the law of overturned by petitioners revelation that everything it refuses to make available at this stage
the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity would be obtainable during trial. The Department of Justice states that the U.S. District Court
with all nations." Under the doctrine of incorporation, rules of international law form part of the concerned has authorized the disclosure of certain grand jury information. If the information is
law of the land and no further legislative action is needed to make such rules applicable in the truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings.
domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). Not even during trial. Oldmis o

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are A libertarian approach is thus called for under the premises.
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
jurisprudence and procedures on extradition, for any prohibition against the conferment of the
law was enacted with proper regard for the generally accepted principles of international law in
two basic due process rights of notice and hearing during the evaluation stage of the extradition
observance of the Incorporation Clause in the above-cited constitutional provision
proceedings. We have to consider similar situations in jurisprudence for an application by
(Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal
law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong
vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Earlier, we stated that there are similarities between the evaluation process and a preliminary
Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are investigation since both procedures may result in the arrest of the respondent or the prospective
accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). (at p. 671)
Following petitioners theory, because there is no provision of its availability, does this imply that
for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
Article III of the Constitution which states that "[t]he privilege of the writ of habeas corpus shall
process rights of the respondent.
not be suspended except in cases of invasion or rebellion when the public safety requires it"?
Petitioners theory would also infer that bail is not available during the arrest of the prospective
extraditee when the extradition petition has already been filed in court since Presidential Decree In the case at bar, private respondent does not only face a clear and present danger of loss of
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution property or employment, but of liberty itself, which may eventually lead to his forcible banishment
which provides that "[a]ll persons, except those charged with offenses punishable by reclusion to a foreign land. The convergence of petitioners favorable action on the extradition request and
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient the deprivation of private respondents liberty is easily comprehensible.
sureties, or be released on recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended " Can petitioner
validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign We have ruled time and again that this Courts equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? Ncm
law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530
[1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the
The basic principles of administrative law instruct us that "the essence of due process in case at bar does not even call for "justice outside legality," since private respondents due
administrative proceedings is an opportunity to explain ones side or an opportunity to seek process rights, although not guaranteed by statute or by treaty, are protected by constitutional
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 guarantees. We would not be true to the organic law of the land if we choose strict construction
[1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 over guarantees against the deprivation of liberty. That would not be in keeping with the
[1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 principles of democracy on which our Constitution is premised.
SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process
refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty. Petitioners fears that the government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
Requesting State may have valid objections to the Requested States non-performance of its and wayward course be laid.
commitments under the Extradition Treaty are insubstantial and should not be given paramount
consideration. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for
lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four and its supporting papers, and to grant him a reasonable period within which to file his comment
corners of Presidential Decree No. 1069? with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot
and academic by this decision, the same is hereby ordered dismissed.

Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447
[1997]) where we ruled that in summary proceedings under Presidential Decree No. 807
(Providing for the Organization of the Civil Service Commission in Accordance with Provisions of
the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential
Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who
may be charged for Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended
by Presidential Decree No. 1707, although summary dismissals may be effected without the
necessity of a formal investigation, the minimum requirements of due process still operate. As
held in GSIS vs. Court of Appeals:

... [I]t is clear to us that what the opening sentence of Section 40 is saying is
that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an employee
must be informed of the charges preferred against him, and that the normal
way by which the employee is so informed is by furnishing him with a copy
of the charges against him. This is a basic procedural requirement that a
statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement
is that the employee charged with some misfeasance or malfeasance must
have a reasonable opportunity to present his side of the matter, that is to
say, his defenses against the charges levelled against him and to present
evidence in support of his defenses. Ncmmis

On November 25, 1984, a contingent of more than two hundred Philippine marines and
elements of the home defense forces raided the compound occupied by the petitioners at Gov.
Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a "zona," which was not unlike the
feared practice of the kempeitai during the Japanese Occupation of rounding up the people in a
locality, arresting the persons fingered by a hooded informer, and executing them outright
(although the last part is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of
gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and deter
them from entering. Unfortunately, as might be expected in incidents like this, the situation
aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in
a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were
arrested, later to be finger-printed, paraffin-tested and photographed over their objection. The
military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and
several rounds of ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition
and mandamus with preliminary injunction and restraining order. Their purpose was to recover
the articles seized from them, to prevent these from being used as evidence against them, and
to challenge their finger-printing, photographing and paraffin-testing as violative of their right
against self-incrimination.4
The Court, treating the petition as an injunction suit with a prayer for the return of the articles
June 23, 1987
alleged to have been illegally seized, referred it for hearing to Judge Omar U. Amin of the
regional trial court, Zamboanga City. 5 After receiving the testimonial and documentary evidence
G.R. No. L-69401
of the parties, he submitted the report and recommendations on which this opinion is based. 6
The petitioners demand the return of the arms and ammunition on the ground that they were
taken without a search warrant as required by the Bill of Rights. This is confirmed by the said
report and in fact admitted by the respondents, "but with avoidance. 7
FEROLINO, petitioners,
Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in
question, provided as follows:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched, and the persons or things to be seized.
OF THE PHILIPPINES, respondents.
It was also declared in Article IV, Section 4(2) that-
Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be make the raid without a search warrant on their own unauthorized determination of the
inadmissible for any purpose in any proceeding. petitioner's guilt.

The respondents, while admitting the absence of the required such warrant, sought to justify The respondents cannot even plead the urgency of the raid because it was in fact not urgent.
their act on the ground that they were acting under superior orders. 8 There was also the They knew where the petitioners were. They had every opportunity to get a search warrant
suggestion that the measure was necessary because of the aggravation of the peace and order before making the raid. If they were worried that the weapons inside the compound would be
problem generated by the assassination of Mayor Cesar Climaco. 9 spirited away, they could have surrounded the premises in the meantime, as a preventive
measure. There was absolutely no reason at all why they should disregard the orderly processes
Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's
were suspected of the Climaco killing did not excuse the constitutional short-cuts the premises with all the menace of a military invasion.
respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10
Conceding that the search was truly warrantless, might not the search and seizure be
The Constitution is a law for rulers and people, equally in war and in peace, and covers with the nonetheless considered valid because it was incidental to a legal arrest? Surely not. If all the law
shield of its protection all classes of men, at all times and under all circumstances. No doctrine, enforcement authorities have to do is force their way into any house and then pick up anything
involving more pernicious consequences, was ever invented by the wit of man than that any of they see there on the ground that the occupants are resisting arrest, then we might as well
its provisions can be suspended during any of the great exigencies of government. delete the Bill of Rights as a fussy redundancy.

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not When the respondents could have easily obtained a search warrant from any of the TEN civil
excuse the non-observance of the constitutional guaranty against unreasonable searches and courts then open and functioning in Zamboanga City, 12 they instead simply barged into the
seizures. There was no state of hostilities in the area to justify, assuming it could, the beleaguered premises on the verbal order of their superior officers. One cannot just force his
repressions committed therein against the petitioners. way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed,
even the humblest hovel is protected from official intrusion because of the ancient rule, revered
It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they in all free regimes, that a man's house is his castle.
received to take them into custody; but that is a criminal argument. It is also fallacious. Its
obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of
alone of unsubstantiated reports that they were stockpiling weapons. England may not enter. All the forces of the Crown dare not cross the threshold of the ruined
tenement. 13
The record does not disclose that the petitioners were wanted criminals or fugitives from justice.
At the time of the "zona," they were merely suspected of the mayor's slaying and had not in fact If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a
even been investigated for it. As mere suspects, they were presumed innocent and not guilty as crime about to be committed, being committed, or just committed, what was that crime? There is
summarily pronounced by the military. no allegation in the record of such a justification. Parenthetically, it may be observed that under
the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge
Indeed, even if were assumed for the sake of argument that they were guilty, they would not of the ground therefor as stressed in the recent case of People v. Burgos.14
have been any less entitled to the protection of the Constitution, which covers both the innocent
and the guilty. This is not to say, of course, that the Constitution coddles criminals. What it does If follows that as the search of the petitioners' premises was violative of the Constitution, all the
simply signify is that, lacking the shield of innocence, the guilty need the armor of the firearms and ammunition taken from the raided compound are inadmissible in evidence in any of
Constitution, to protect them, not from a deserved sentence, but from arbitrary punishment. the proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As
Every person is entitled to due process. It is no exaggeration that the basest criminal, ranged Judge Learned Hand observed, "Only in case the prosecution which itself controls the seizing
against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a officials, knows that it cannot profit by their wrong, will the wrong be repressed. 16 Pending
majority of one. determination of the legality of such articles, however, they shall remain in custodia legis, subject
to such appropriate disposition as the corresponding courts may decide. 17
If the respondents did not actually disdain the Constitution when they made their illegal raid, they
certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves
them, especially during those tense and tindery times, to encourage rather than undermine slight comment. The prohibition against self-incrimination applies to testimonial compulsion only.
respect for the law, which it was their duty to uphold. As Justice Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a
criminal court to be a witness against himself is a prohibition of the use of physical or moral
In acting as they did, they also defied the precept that "civilian authority is at all times supreme compulsion to extort communications from him, not an exclusion of his body as evidence when it
over the military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the may be material."
respondents simply by-passed the civil courts, which had the authority to determine whether or
not there was probable cause to search the petitioner's premises. Instead, they proceeded to The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in
the past, banished with the secret marshals and their covert license to kill without trial. We must
be done with lawlessness in the name of law enforcement. Those who are supposed to uphold
the law must not be the first to violate it. As Chief Justice Claudio Teehankee stressed in his
concurring opinion in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy of
the law of force be discarded and that there be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every individual
is entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid
sentinel for all, the innocent as well as the guilty, including the basest of criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby
declared ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence
against the petitioners in any proceedings. However, the said articles shall remain in custodia
legis pending the outcome of the criminal cases that have been or may later be filed against the


Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Republic of the Philippines



G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

TRANQUILINO LAGMAN, defendant-appellant.


G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, case of United States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of
vs. property without due process of law, because, in its just sense, there is no right of property to an
PRIMITIVO DE SOSA, defendant-appellant. office or employment.

Severino P. Izon for appellants. The circumstance that these decisions refer to laws enacted by reason on the actual existence
Office of the Solicitor-General Tuason for appellee. of war does not make our case any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State, whether actual or whether in preparation
AVANCEA, J.: to make it more effective, in case of need. The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves before the
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Acceptance Board because, if such circumstance exists, they can ask for determent in
Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the complying with their duty and, at all events, they can obtain the proper pecuniary allowance to
National Defense Law. It is alleged that these two appellants, being Filipinos and having reached attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).
the age of twenty years in 1936, willfully and unlawfully refused to register in the military service
between the 1st and 7th of April of said year, notwithstanding the fact that they had been The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants.
required to do so. The evidence shows that these two appellants were duly notified by the So ordered.
corresponding authorities to appear before the Acceptance Board in order to register for military
service in accordance with law, and that the said appellants, in spite of these notices, had not Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.
registered up to the date of the filing of the information.

The appellants do not deny these facts, but they allege in defense that they have not registered
in the military service because Primitivo de Sosa is fatherless and has a mother and a brother
eight years old to support, and Tranquilino Lagman also has a father to support, has no military
learnings, and does not wish to kill or be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and one FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS
CAPACITY AS THE CHIEF OF THE PNP, et al., respondents.
In this instance, the validity of the National Defense Law, under which the accused were
sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of the DECISION
Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty
all citizens may be required by law to render personal military or civil service. The right of individuals to bear arms is not absolute, but is subject to regulation. The
maintenance of peace and order[1] and the protection of the people against violence are
The National Defense Law, in so far as it establishes compulsory military service, does not go constitutional duties of the State, and the right to bear arms is to be construed in connection and
against this constitutional provision but is, on the contrary, in faithful compliance therewith. The in harmony with these constitutional duties.
duty of the Government to defend the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens would be to make this duty of the Before us is a petition for prohibition and injunction seeking to enjoin the implementation of
Government excusable should there be no sufficient men who volunteer to enlist the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
therein.1vvphl.nt Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane,
Jr., Chief of the Philippine National Police (PNP).
In the United States the courts have held in a series of decisions that the compulsory military
service adopted by reason of the civil war and the world war does not violate the Constitution, The facts are undisputed:
because the power to establish it is derived from that granted to Congress to declare war and to
organize and maintain an army. This is so because the right of the Government to require In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members of
compulsory military service is a consequence of its duty to defend the State and is reciprocal the PNP stressing the need for a nationwide gun ban in all public places to avert the rising crime
with its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs. incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of
Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the Permits to Carry Firearms Outside of Residence (PTCFOR), thus:
Constitution, a person may be compelled by force, if need be, against his will, against his
pecuniary interests, and even against his religious or political convictions, to take his place in the THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO
ranks of the army of his country, and risk the chance of being shot down in its defense. In the DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST BEING
THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND WE This Memorandum prescribes the guidelines in the implementation of the ban on the carrying of
ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF firearms outside of residence as provided for in the Implementing Rules and Regulations,
JUSTICE. Presidential Decree No. 1866, dated June 29, 1983 and as directed by PGMA. It also
prescribes the conditions, requirements and procedures under which exemption from the ban
ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES. 4. Specific Instructions on the Ban on the Carrying of Firearms:

THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with
PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions
THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY b. All holders of licensed or government firearms are hereby prohibited from carrying
FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW.CIVILIAN their firearms outside their residence except those covered with mission/letter orders and
OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866,
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL provided, that the said exception shall pertain only to organic and regular employees.
PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN 5. The following persons may be authorized to carry firearms outside of residence.
a. All persons whose application for a new PTCFOR has been approved, provided, that the
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE persons and security of those so authorized are under actual threat, or by the nature of their
CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE. position, occupation and profession are under imminent danger.

Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines b. All organic and regular employees with Mission/Letter Orders granted by their respective
quoted as follows: agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter
Orders is valid only for the duration of the official mission which in no case shall be more than
TO : All Concerned ten (10) days.

FROM : Chief, PNP c. All guards covered with Duty Detail Orders granted by their respective security agencies so
authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case
SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of Firearms exceed 24-hour duration.
Outside of Residence.
d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for
DATE : January 31, 2003 purposes of practice and competition, provided, that such firearms while in transit must not be
loaded with ammunition and secured in an appropriate box or case detached from the person.
1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.
e. Authorized members of the Diplomatic Corps.
2. General:
6. Requirements for issuance of new PTCFOR:
The possession and carrying of firearms outside of residence is a privilege granted by the State
to its citizens for their individual protection against all threats of lawlessness and security. a. Written request by the applicant addressed to Chief, PNP stating his qualification to possess
firearm and the reasons why he needs to carry firearm outside of residence.
As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate
of registration or MR) are prohibited from carrying their firearms outside of residence. However, b. Xerox copy of current firearm license duly authenticated by Records Branch, FED;
the Chief, Philippine National Police may, in meritorious cases as determined by him and under
conditions as he may impose, authorize such person or persons to carry firearms outside of c. Proof of actual threat, the details of which should be issued by the Chief of Police/Provincial or
residence. City Directors and duly validated by C, RIID;

3. Purposes: d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if photocopied;

e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;

f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center, if photocopied; THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH TO
g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by Chief, CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES.
Operations Branch, FED;
h. NBI Clearance;
i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of filing of application; PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN;
j. Proof of Payment
7. Procedures:
a. Applications may be filed directly to the Office of the PTCFOR Secretariat in Camp Crame. In GUIDELINES BECAUSE:
the provinces, the applications may also be submitted to the Police Regional Offices (PROs) and
Provincial/City Police Offices (P/CPOs) for initial processing before they are forwarded to the 1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP CHIEF
office of the PTCFOR Secretariat. The processors, after ascertaining that the documentary THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.
requirements are in order, shall issue the Order of Payment (OP) indicating the amount of fees
payable by the applicant, who in turn shall pay the fees to the Land Bank.

b. Applications, which are duly processed and prepared in accordance with existing rules and 2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE
regulations, shall be forwarded to the OCPNP for approval. SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.

c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1) year from date 3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF

d. Applications for renewal of PTCFOR shall be processed in accordance with the provisions of IV
par. 6 above.
e. Application for possession and carrying of firearms by diplomats in the Philippines shall be AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO
processed in accordance with NHQ PNP Memo dated September 25, 2000, with Subj: ISSUE THE SAME BECAUSE
Possession and Carrying of Firearms by Diplomats in the Philippines.
8. Restrictions in the Carrying of Firearms: PROMULGATED JOINTLY BY THE DOJ AND THE DILG.

a. The firearm must not be displayed or exposed to public view, except those authorized in 2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF OF
uniform and in the performance of their official duties. THE PHILIPPINE CONSTABULARY.

b. The firearm shall not be brought inside public drinking and amusement places, and all other V
commercial or public establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued, BECAUSE:
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the 1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH
present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP
Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW
Division. He anchored his petition on the following grounds: FOR:

B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF Fifth, whether the assailed Guidelines constitute an ex post facto law?
POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of
THE POLICE FORCE. courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP Chief
is authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY to own and carry firearms; (3) the assailed Guidelines do not violate the due process clause of
PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE the Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE not an iron-clad dictum. In several instances where this Court was confronted with cases of
OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS national interest and of serious implications, it never hesitated to set aside the rule and proceed
USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE with the judicial determination of the cases.[3] The case at bar is of similar import as it involves
Authority of the PNP Chief
REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE Relying on the principle of separation of powers, petitioner argues that only Congress can
PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR. withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and
respondent Ebdane transgressed the settled principle and arrogated upon themselves a power
VIII they do not possess the legislative power.

ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE LAWBREAKERS It is true that under our constitutional system, the powers of government are distributed among
(KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY, three coordinate and substantially independent departments: the legislative, the executive and
AND NPA) UNTOUCHED. the judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme
within its own sphere.[4]
Pertinently, the power to make laws the legislative power is vested in Congress. [5] Congress may
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE not escape its duties and responsibilities by delegating that power to any other body or
IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED. authority. Any attempt to abdicate the power is unconstitutional and void, on the principle
that delegata potestas non potest delegari delegated power may not be delegated.[6]
The rule which forbids the delegation of legislative power, however, is not absolute and
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the
RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS legislative body to delegate its licensing power to certain persons, municipal corporations, towns,
TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION. boards, councils, commissions, commissioners, auditors, bureaus and directors.[7] Such
licensing power includes the power to promulgate necessary rules and regulations. [8]
Petitioners submissions may be synthesized into five (5) major issues:
The evolution of our laws on firearms shows that since the early days of our Republic, the
First, whether respondent Ebdane is authorized to issue the assailed Guidelines; legislatures tendency was always towards the delegation of power. Act No. 1780,[9] delegated
upon the Governor-General (now the President) the authority (1) to approve or disapprove
Second, whether the citizens right to bear arms is a constitutional right?; applications of any person for a license to deal in firearms or to possess the same for personal
protection, hunting and other lawful purposes; and (2) to revoke such license any
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a time.[10] Further, it authorized him to issue regulations which he may deem necessary for the
violation of his right to property?; proper enforcement of the Act. [11] With the enactment of Act No. 2711, the Revised
Administrative Code of 1917, the laws on firearms were integrated. [12] The Act retained the
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and
authority of the Governor General provided in Act No. 1780. Subsequently, the growing for violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of R.A.
complexity in the Office of the Governor-General resulted in the delegation of his authority to the No. 8294, thereby ensuring the early release and reintegration of the convicts into the
Chief of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater community.
issued Executive Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his
behalf in approving and disapproving applications for personal, special and hunting Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
licenses. This was followed by Executive Order No. 61[14] designating the Philippine guidelines.
Constabulary (PC) as the government custodian of all firearms, ammunitions and
explosives. Executive Order No. 215,[15] issued by President Diosdado Macapagal on December Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban, arguing
3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove that she has no authority to alter, modify, or amend the law on firearms through a mere speech.
applications for personal, special and hunting license, but also the authority to revoke the
same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary First, it must be emphasized that President Arroyos speech was just an expression of her policy
had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and a directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted
and 3 of the Implementing Rules and Regulations of Presidential Decree No. 1866[16] perpetuate a law through a mere speech.
such authority of the Chief of the Constabulary. Section 2 specifically provides that any person
or entity desiring to possess any firearm shall first secure the necessary Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of
permit/license/authority from the Chief of the Constabulary. With regard to the issuance of the Constitution specifies his power as Chief Executive, thus: The President shall have control
PTCFOR, Section 3 imparts: The Chief of Constabulary may, in meritorious cases as of all the executive departments, bureaus and offices. He shall ensure that the laws be
determined by him and under such conditions as he may impose, authorize lawful faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that controls
holders of firearms to carry them outside of residence. These provisions are issued the course of her government. She lays down policies in the execution of her plans and
pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate rules programs. Whatever policy she chooses, she has her subordinates to implement them. In short,
and regulations for the effective implementation of the decree.[17] At this juncture, it bears she has the power of control. Whenever a specific function is entrusted by law or regulation
emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the Philippines to her subordinate, she may act directly or merely direct the performance of a
and that it was issued by President Ferdinand E. Marcos in the exercise of his legislative duty.[24] Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of
power.[18] PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well
within the prerogative of her office.
In an attempt to evade the application of the above-mentioned laws and regulations, petitioner
argues that the Chief of the PNP is not the same as the Chief of the Constabulary, the PC being II
a mere unit or component of the newly established PNP. He contends further that Republic Act
No. 8294[19] amended P.D. No. 1866 such that the authority to issue rules and regulations Right to bear arms: Constitutional or Statutory?
regarding firearms is now jointly vested in the Department of Justice and the DILG, not the Chief
of the Constabulary.[20] Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right. This,
he mainly anchors on various American authorities. We therefore find it imperative to determine
Petitioners submission is bereft of merit. the nature of the right in light of American jurisprudence.

By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the The bearing of arms is a tradition deeply rooted in the English and American society. It
Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the antedates not only the American Constitution but also the discovery of firearms. [25]
Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof
specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms A provision commonly invoked by the American people to justify their possession of firearms is
and explosives in accordance with law.[22] This is in conjunction with the PNP Chiefs power to the Second Amendment of the Constitution of the United States of America, which reads:
issue detailed implementing policies and instructions on such matters as may be necessary to
A well regulated militia, being necessary for the security of free state, the right of the people to
effectively carry out the functions, powers and duties of the PNP.[23]
keep and bear Arms, shall not be infringed.
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the Constabulary
An examination of the historical background of the foregoing provision shows that it pertains to
(now the PNP Chief) of his authority to promulgate rules and regulations for the effective
the citizens collective right to take arms in defense of the State, not to the citizens individual right
implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866.
to own and possess arms. The setting under which the right was contemplated has a profound
It merely provides for the reduction of penalties for illegal possession of firearms. Thus, the
connection with the keeping and maintenance of a militia or an armed citizenry. That this is how
provision of P.D. No. 1866 granting to the Chief of the Constabulary the authority to issue rules
the right was construed is evident in early American cases.
and regulations regarding firearms remains effective. Correspondingly, the Implementing Rules
and Regulations dated September 15, 1997 jointly issued by the Department of Justice and the
The first case involving the interpretation of the Second Amendment that reached the United
DILG pursuant to Section 6 of R.A. No. 8294 deal only with the automatic review, by the Director
States Supreme Court is United States vs. Miller.[26] Here, the indictment charged the defendants
of the Bureau of Corrections or the Warden of a provincial or city jail, of the records of convicts
with transporting an unregistered Stevens shotgun without the required stamped written order, Counsel does not expressly rely upon the prohibition in the United States Constitution
contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial against the infringement of the right of the people of the United States to keep and bear
validity of the indictment on the ground that the National Firearms Act offends the inhibition of arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it
the Second Amendment. The District Court sustained the demurrer and quashed the may be well, in passing, to point out that in no event could this constitutional guaranty
indictment. On appeal, the Supreme Court interpreted the right to bear arms under the have any bearing on the case at bar, not only because it has not been expressly extended
Second Amendment as referring to the collective right of those comprising the Militia a to the Philippine Islands, but also because it has been uniformly held that both this and
body of citizens enrolled for military discipline. It does not pertain to the individual right similar provisions in State constitutions apply only to arms used in civilized warfare (see
of citizen to bear arm. Miller expresses its holding as follows: cases cited in 40 Cyc., 853, note 18); x x x.

In the absence of any evidence tending to show that possession or use of a shotgun having a Evidently, possession of firearms by the citizens in the Philippines is the exception, not
barrel of less than eighteen inches in length at this time has some reasonable relationship to the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a
the preservation or efficiency of a well regulated militia, we cannot say that the Second mere statutory creation. What then are the laws that grant such right to the Filipinos? The
Amendment guarantees the right to keep and bear such an instrument. Certainly it is not first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12,
within judicial notice that this weapon is any part of the ordinary military equipment or that its use 1907. It was passed to regulate the importation, acquisition, possession, use and transfer of
could contribute to the common defense. firearms. Section 9 thereof provides:

The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of SECTION 9. Any person desiring to possess one or more firearms for personal
Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the protection, or for use in hunting or other lawful purposes only, and ammunition therefor,
Second Amendment. It ruled that: shall make application for a license to possess such firearm or firearms or ammunition as
hereinafter provided. Upon making such application, and before receiving the license, the
While [appellants] weapon may be capable of military use, or while at least familiarity with it applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos
might be regarded as of value in training a person to use a comparable weapon of military type for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in
and caliber, still there is no evidence that the appellant was or ever had been a member of such form as the Governor-General may prescribe, payable to the Government of the Philippine
any military organization or that his use of the weapon under the circumstances Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That
disclosed was in preparation for a military career. In fact, the only inference possible is persons who are actually members of gun clubs, duly formed and organized at the time of the
that the appellant at the time charged in the indictment was in possession of, passage of this Act, who at such time have a license to possess firearms, shall not be required
transporting, and using the firearm and ammunition purely and simply on a frolic of his to make the deposit or give the bond prescribed by this section, and the bond duly executed by
own and without any thought or intention of contributing to the efficiency of the well such person in accordance with existing law shall continue to be security for the safekeeping of
regulated militia which the Second amendment was designed to foster as necessary to such arms.
the security of a free state.
The foregoing provision was restated in Section 887[31] of Act No. 2711 that integrated the
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the
the American people the right to bear arms. In a more explicit language, the United States vs. laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or
Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right granted explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the
by the Constitution. Neither is it in any way dependent upon that instrument. Likewise, provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory
in People vs. Persce,[29] the Court of Appeals said: Neither is there any constitutional provision creation, the right to bear arms cannot be considered an inalienable or absolute right.
securing the right to bear arms which prohibits legislation with reference to such weapons as are
specifically before us for consideration. The provision in the Constitution of the United III
States that the right of the people to keep and bear arms shall not be infringed is not
designed to control legislation by the state. Vested Property Right

With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Section 1, Article III of the Constitution provides that no person shall be deprived of life, liberty or
Philippine Constitution. Our Constitution contains no provision similar to the Second property without due process of law. Petitioner invokes this provision, asserting that the
Amendment, as we aptly observed in the early case of United States vs. Villareal:[30] revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested
property right without due process of law and in violation of the equal protection of law.
The only contention of counsel which would appear to necessitate comment is the claim that the
statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of Petitioner cannot find solace to the above-quoted Constitutional provision.
firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of
Rights. In evaluating a due process claim, the first and foremost consideration must be whether life,
liberty or property interest exists.[32] The bulk of jurisprudence is that a license authorizing a
person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director
of Forestry,[33] we ruled that a license is merely a permit or privilege to do what otherwise would Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked
be unlawful, and is not a contract between the authority granting it and the person to whom it is any time. It does not confer an absolute right, but only a personal privilege to be exercised under
granted; neither is it property or a property right, nor does it create a vested right. In a existing restrictions, and such as may thereafter be reasonably imposed. [41] A licensee takes his
more emphatic pronouncement, we held in Oposa vs. Factoran, Jr.[34] that: license subject to such conditions as the Legislature sees fit to impose, and one of the statutory
conditions of this license is that it might be revoked by the selectmen at their pleasure. Such
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is a license is not a contract, and a revocation of it does not deprive the defendant of any
not a contract, property or a property right protected by the due process clause of the property, immunity, or privilege within the meaning of these words in the Declaration of
Constitution. Rights.[42] The US Supreme Court, in Doyle vs. Continental Ins. Co,[43]held: The correlative
power to revoke or recall a permission is a necessary consequence of the main power. A
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily mere license by the State is always revocable.
on Bell vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is issued,
continued possession may become essential in the pursuit of livelihood. Suspension of issued The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus,
licenses thus involves state action that adjudicates important interest of the licensees. in The Government of the Philippine Islands vs. Amechazurra[44] we ruled:

Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to x x x no private person is bound to keep arms. Whether he does or not is entirely optional with
bear arms. The catena of American jurisprudence involving license to bear arms is perfectly in himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so
accord with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. upon such terms as the Government sees fit to impose, for the right to keep and bear arms is
OBrien,[36] the plaintiff who was denied a license to carry a firearm brought suit against the not secured to him by law. The Government can impose upon him such terms as it pleases. If he
defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that the is not satisfied with the terms imposed, he should decline to accept them, but, if for the purpose
denial violated her constitutional rights to due process and equal protection of the laws. The of securing possession of the arms he does agree to such conditions, he must fulfill them.
United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a property interest in
obtaining a license to carry a firearm, ratiocinating as follows: IV

Property interests protected by the Due Process Clause of the Fourteenth Amendment do Police Power
not arise whenever a person has only an abstract need or desire for, or unilateral
expectation of a benefit.x x x Rather, they arise from legitimate claims of entitlement At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the
defined by existing rules or understanding that stem from an independent source, such Constitution, the same cannot be considered as absolute as to be placed beyond the reach of
as state law. x x x the States police power. All property in the state is held subject to its general regulations,
necessary to the common good and general welfare.
Concealed weapons are closely regulated by the State of California. x x x Whether the statute
creates a property interest in concealed weapons licenses depends largely upon the In a number of cases, we laid down the test to determine the validity of a police measure, thus:
extent to which the statute contains mandatory language that restricts the discretion of
the [issuing authority] to deny licenses to applicants who claim to meet the minimum (1) The interests of the public generally, as distinguished from those of a particular class, require
eligibility requirements. x x x Where state law gives the issuing authority broad discretion the exercise of the police power; and
to grant or deny license application in a closely regulated field, initial applicants do not
have a property right in such licenses protected by the Fourteenth Amendment. See (2) The means employed are reasonably necessary for the accomplishment of the purpose and
Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law); not unduly oppressive upon individuals.

Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs. King,[38] Nichols Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated that the test guarantees of substantive due process, equal protection, and non-impairment of property rights.
whether the statute creates a property right or interest depends largely on the extent of
discretion granted to the issuing authority. It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace
and order in the society. Owing to the proliferation of crimes, particularly those committed by the
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is New Peoples Army (NPA), which tends to disturb the peace of the community, President Arroyo
evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state deemed it best to impose a nationwide gun ban. Undeniably, the motivating factor in the
that the Chief of Constabulary may, in meritorious cases as determined by him and under issuance of the assailed Guidelines is the interest of the public in general.
such conditions as he may impose, authorize lawful holders of firearms to carry them outside
of residence. Following the American doctrine, it is indeed logical to say that a PTCFOR does The only question that can then arise is whether the means employed are appropriate and
not constitute a property right protected under our Constitution. reasonably necessary for the accomplishment of the purpose and are not unduly oppressive.In
the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What
they proscribe is merely the carrying of firearms outside of residence. However, those who wish
to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we GREGORIO AGLIPAY, petitioner,
believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime vs.
incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not wait JUAN RUIZ, respondent.
in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for
criminals to roam around with their guns. On the other hand, it would be easier for the PNP to Vicente Sotto for petitioner.
apprehend them. Office of the Solicitor-General Tuason for respondent.

Notably, laws regulating the acquisition or possession of guns have frequently been upheld as LAUREL, J.:
reasonable exercise of the police power.[45] In State vs. Reams,[46] it was held that the legislature
may regulate the right to bear arms in a manner conducive to the public peace. With the The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church,
promotion of public peace as its objective and the revocation of all PTCFOR as the means, we seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of
are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise of Posts from issuing and selling postage stamps commemorative of the Thirty-third International
police power. The ruling in United States vs. Villareal,[47] is relevant, thus: Eucharistic Congress.

We think there can be no question as to the reasonableness of a statutory regulation prohibiting In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the
the carrying of concealed weapons as a police measure well calculated to restrict the too issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third
frequent resort to such weapons in moments of anger and excitement. We do not doubt that the international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in
strict enforcement of such a regulation would tend to increase the security of life and limb, and to the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of
the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the
suppress crime and lawlessness, in any community wherein the practice of carrying concealed
protest of the petitioner's attorney, the respondent publicly announced having sent to the United
weapons prevails, and this without being unduly oppressive upon the individual owners of these States the designs of the postage stamps for printing as follows:
weapons. It follows that its enactment by the legislature is a proper and legitimate exercise of the
police power of the state.
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are
blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations
V are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though
the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to
Ex post facto law be prevented by the petitioner herein.

In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an action The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the
done before the passing of the law and which was innocent when done criminal, and punishes instant case, although he admits that the writ may properly restrain ministerial functions. While,
such action; or (b) which aggravates a crime or makes it greater than it was when committed; generally, prohibition as an extraordinary legal writ will not issue to restrain or control the
or (c) which changes the punishment and inflicts a greater punishment than the law annexed to performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
the crime when it was committed; or (d) which alters the legal rules of evidence and receives enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals,
less or different testimony than the law required at the time of the commission of the offense in corporations, boards, or persons, whether excercising functions judicial or ministerial, which are
without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ."
order to convict the defendant.
(Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with
reference to "functions" in the statute are undoubtedly comprehensive and include the
We see no reason to devote much discussion on the matter. Ex post facto law prohibits challenged act of the respondent Director of Posts in the present case, which act because
retrospectivity of penal laws.[49] The assailed Guidelines cannot be considered as an ex post alleged to be violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction."
facto law because it is prospective in its application. Contrary to petitioners argument, it would The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined
not result in the punishment of acts previously committed. exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to
prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in
WHEREFORE, the petition is hereby DISMISSED. appropriate cases, to an officer or person whose acts are without or in excess of his authority.
Not infrequently, "the writ is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner,
SO ORDERED. or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)

Republic of the Philippines The more important question raised refers to the alleged violation of the Constitution by the
SUPREME COURT respondent in issuing and selling postage stamps commemorative of the Thirty-third
Manila International Eucharistic Congress. It is alleged that this action of the respondent is violative of
the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which
EN BANC provides as follows:

G.R. No. L-45459 March 13, 1937

No public money or property shall ever be appropriated, applied, or used, directly or PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
indirectly, for the use, benefit, or support of any sect, church, denomination, PURPOSES.
secretarian, institution, or system of religion, or for the use, benefit, or support of any
priest, preacher, minister, or other religious teacher or dignitary as such, except when
Be it enacted by the Senate and House of Representatives of the Philippines in
such priest, preacher, minister, or dignitary is assigned to the armed forces or to any
Legislature assembled and by the authority of the same:
penal institution, orphanage, or leprosarium.

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately
The prohibition herein expressed is a direct corollary of the principle of separation of church and
available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of
state. Without the necessity of adverting to the historical background of this principle in our
plates and printing of postage stamps with new designs, and other expenses incident thereto.
country, it is sufficient to say that our history, not to speak of the history of mankind, has taught
us that the union of church and state is prejudicial to both, for ocassions might arise when the
estate will use the church, and the church the state, as a weapon in the furtherance of their SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and
recognized this principle of separation of church and state in the early stages of our Communications, is hereby authorized to dispose of the whole or any portion of the amount
constitutional development; it was inserted in the Treaty of Paris between the United States and herein appropriated in the manner indicated and as often as may be deemed advantageous to
Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine the Government.
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29,
1916, and finally embodied in the constitution of the Philippines as the supreme expression of
the Filipino people. It is almost trite to say now that in this country we enjoy both religious and SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the
civil freedom. All the officers of the Government, from the highest to the lowest, in taking their Treasury.
oath to support and defend the constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and recognized SEC. 4. This act shall take effect on its approval.
implications. It should be stated that what is guaranteed by our Constitution is religious liberty,
not mere religious toleration.
Approved, February 21, 1933.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence

for religion and is not denial of its influence in human affairs. Religion as a profession of faith to It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates
an active power that binds and elevates man to his Creator is recognized. And, in so far as it and printing of postage stamps with new designs and other expenses incident thereto, and
instills into the minds the purest principles of morality, its influence is deeply felt and highly authorizes the Director of Posts, with the approval of the Secretary of Public Works and
appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid Communications, to dispose of the amount appropriated in the manner indicated and "as often
of Divine Providence, in order to establish a government that shall embody their ideals, conserve as may be deemed advantageous to the Government". The printing and issuance of the postage
and develop the patrimony of the nation, promote the general welfare, and secure to themselves stamps in question appears to have been approved by authority of the President of the
and their posterity the blessings of independence under a regime of justice, liberty and Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as
democracy," they thereby manifested reliance upon Him who guides the destinies of men and Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if
nations. The elevating influence of religion in human society is recognized here as elsewhere. In the writ prayed for is granted. He estimates the revenue to be derived from the sale of the
fact, certain general concessions are indiscriminately accorded to religious sects and postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps
denominations. Our Constitution and laws exempt from taxation properties devoted exclusively worth P1,402,279.02.
to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is
Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or the discretionary power to determine when the issuance of special postage stamps would be
dignitary as such is assigned to the armed forces or to any penal institution, orphanage or "advantageous to the Government." Of course, the phrase "advantageous to the Government"
leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious does not authorize the violation of the Constitution. It does not authorize the appropriation, use
instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, or application of public money or property for the use, benefit or support of a particular sect or
Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy church. In the present case, however, the issuance of the postage stamps in question by the
Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Director of Posts and the Secretary of Public Works and Communications was not inspired by
Code) because of the secular idea that their observance is conclusive to beneficial moral results. any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman
The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious Catholic Church. Nor were money derived from the sale of the stamps given to that church. On
worship are considered crimes against the fundamental laws of the state (see arts. 132 and 133, the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on
Revised Penal Code). page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was
"to advertise the Philippines and attract more tourist to this country." The officials concerned
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in merely, took advantage of an event considered of international importance "to give publicity to
question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as the Philippines and its people" (Letter of the Undersecretary of Public Works and
follows: Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It
is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains a map of the Philippines and
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS the location of the City of Manila, and an inscription as follows: "Seat XXXIII International
AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself
TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND but Manila, the capital of the Philippines, as the seat of that congress. It is obvious that while the
issuance and sale of the stamps in question may be said to be inseparably linked with an event
of a religious character, the resulting propaganda, if any, received by the Roman Catholic
Church, was not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which could legitimately be
undertaken by appropriate legislation. The main purpose should not be frustrated by its
subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S.,
295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain
inviolate the complete separation of church and state and curb any attempt to infringe by
indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious
intolerance and prescription, care should be taken that at this stage of our political development
nothing is done by the Government or its officials that may lead to the belief that the Government
is taking sides or favoring a particular religious sect or institution. But, upon very serious
reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have
come to the conclusion that there has been no constitutional infraction in the case at bar, Act No.
4052 grants the Director of Posts, with the approval of the Secretary of Public Works and
Communications, discretion to misuse postage stamps with new designs "as often as may be
deemed advantageous to the Government." Even if we were to assume that these officials made
use of a poor judgment in issuing and selling the postage stamps in question still, the case of the
petitioner would fail to take in weight. Between the exercise of a poor judgment and the
unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in
setting aside the official act assailed as coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So

Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Funds were raised by means of solicitations0 and cash donations of the barangay residents and
those of the neighboring places of Valencia. With those funds, the waiting shed was constructed
and the wooden image of San Vicente Ferrer was acquired in Cebu City by the barangay council
for four hundred pesos (Exh. F-l, 3 and 4).
Republic of the Philippines
SUPREME COURT On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of
Manila Barangay Valencia so that the devotees could worship the saint during the mass for the fiesta.

EN BANC A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmea
refused to return that image to the barangay council on the pretext that it was the property of the
G.R. No. L-53487 May 25, 1981 church because church funds were used for its acquisition.

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS DAGAR and Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass,
JESUS EDULLANTES, petitioners, Father Osmea allegedly uttered defamatory remarks against the barangay captain, Manuel C.
vs. Veloso, apparently in connection with the disputed image. That incident provoked Veloso to file
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, against Father Osmea in the city court of Ormoc City a charge for grave oral defamation.
Ormoc City Branch V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain
MANUEL C. VELOSO, Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and Father Osmea retaliated by filing administrative complaints against Veloso with the city mayor's
MAXIMINO NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer office and the Department of Local Government and Community Development on the grounds of
LUCENA BALTAZAR, respondents. immorality, grave abuse of authority, acts unbecoming a public official and ignorance of the law.

Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia.
Because Father Osmea did not accede to the request of Cabatingan to have custody of the
AQUINO, J.:1wph1.t image and "maliciously ignored" the council's Resolution No. 6, the council enacted on May 12,
1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father
This case is about the constitutionality of four resolutions of the barangay council of Valencia, Osmea for the recovery of the image (Exh. C or 8). On June 14, 1976, the barangay council
Ormoc City, regarding the acquisition of the wooden image of San Vicente Ferrer to be used in passed Resolution No. 12, appointing Veloso as its representative in the replevin case (Exh. D
the celebration of his annual feast day. That issue was spawned by the controversy as to or 9).
whether the parish priest or a layman should have the custody of the image.
The replevin case was filed in the city court of Ormoc City against Father Osmea and Bishop
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional Cipriano Urgel (Exh. F). After the barangay council had posted a cash bond of eight hundred
socio-religious celebration" every fifth day of April "of the feast day of Seor San Vicente Ferrer, pesos, Father Osmea turned over the image to the council (p. 10, Rollo). ln his answer to the
the patron saint of Valencia". complaint for replevin, he assailed the constitutionality of the said resolutions (Exh. F-1).

That resolution designated the members of nine committees who would take charge of the 1976 Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two
festivity. lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its
construction of a waiting shed as the barangay's projects. Funds for the two projects would be members (excluding two members) a complaint in the Court of First Instance at Ormoc City,
obtained through the selling of tickets and cash donations " (Exh A or 6). praying for the annulment of the said resolutions (Civil Case No. 1680-0).

On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners
accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman appealed under Republic Act No. 5440. The petitioners contend that the barangay council was
or hermano mayor of the fiesta, would be the caretaker of the image of San Vicente Ferrer and not duly constituted because lsidoro M. Maago, Jr., the chairman of the kabataang barangay,
that the image would remain in his residence for one year and until the election of his successor was not allowed to participate in its sessions.
as chairman of the next feast day.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A).
It was further provided in the resolution that the image would be made available to the Catholic Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L,
parish church during the celebration of the saint's feast day (Exh. B or 7). directed that all barrios should be known as barangays and adopted the Revised Barrio Charter
as the Barangay Charter.
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay
general assembly on March 26, 1976. Two hundred seventy-two voters ratified the two Barrios are units of municipalities or municipal districts in which they are situated. They are
resolutions (Exh. 2 and 5). quasi-municipal corporations endowed with such powers" as are provided by law "for the
performance of particular government functions, to be exercised by and through their respective As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an
barrio governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590). ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the
lives of the masses.
The barrio assembly consists of all persons who are residents of the barrio for at least six
months, eighteen years of age or over and Filipino citizens duly registered in the list kept by the The barangay council designated a layman as the custodian of the wooden image in order to
barrio secretary (Sec. 4, Ibid). forestall any suspicion that it is favoring the Catholic church. A more practical reason for that
arrangement would be that the image, if placed in a layman's custody, could easily be made
The barrio council, now barangay council, is composed of the barangay captain and six available to any family desiring to borrow the image in connection with prayers and novenas.
councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on April
15, 1975, provides that "the barangay youth chairman shall be an ex-officio member of the The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces
barangay council", having the same powers and functions as a barangay councilman. swore that the said resolutions favored the Catholic church. On the other hand, petitioners Dagar
and Edullantes swore that the resolutions prejudiced the Catholics because they could see the
In this case, Maago, the barangay youth chairman, was notified of the sessions of the barangay image in the church only once a year or during the fiesta (Exh. H and J).
council to be held on March 23 and 26, 1976 but he was not able to attend those sessions
because he was working with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. We find that the momentous issues of separation of church and state, freedom of religion annd
1). the use of public money to favor any sect or church are not involved at all in this case even
remotely or indirectly. lt is not a microcosmic test case on those issues.
Maago's absence from the sessions of the barangay council did not render the said resolutions
void. There was a quorum when the said resolutions were passed. This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the
parties had been more diplomatic and tactful and if Father Osmea had taken the trouble of
The other contention of the petitioners is that the resolutions contravene the constitutional causing contributions to be solicited from his own parishioners for the purchase of another
provisions that "no law shall be made respecting an establishment of religion" and that "no public image of San Vicente Ferrer to be installed in his church.
money or property shall ever be appropriated, applied, paid, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian institution, or system of There can be no question that the image in question belongs to the barangay council. Father
religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious Osmea claim that it belongs to his church is wrong. The barangay council, as owner of the
teacher or dignitary as such. except when such priest, preacher, minister, or dignitary is image, has the right to determine who should have custody thereof.
assigned to the armed forces, or to any penal institution, or government orphanage or
leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution). If it chooses to change its mind and decides to give the image to the Catholic church. that action
would not violate the Constitution because the image was acquired with private funds and is its
That contention is glaringly devoid of merit. The questioned resolutions do not directly or private property.
indirectly establish any religion, nor abridge religious liberty, nor appropriate public money or
property for the benefit of any sect, priest or clergyman. The image was purchased with private The council has the right to take measures to recover possession of the image by enacting
funds, not with tax money. The construction of a waiting shed is entirely a secular matter. Resolutions Nos. 10 and 12.

Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Not every governmental activity which involves the expenditure of public funds and which has
Catholic religion by using the funds raised by solicitations and donations for the purchase of the some religious tint is violative of the constitutional provisions regarding separation of church and
patron saint's wooden image and making the image available to the Catholic church. state, freedom of worship and banning the use of public money or property.

The preposterousness of that argument is rendered more evident by the fact that counsel In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty
advanced that argument in behalf of the petitioner, Father Osmea the parish priest. thousand pesos for the cost of plates and the printing of postage stamps with new designs.
Under the law, the Director of Posts, with the approval of the Department Head and the
The wooden image was purchased in connection with the celebration of the barrio fiesta President of the Philippines, issued in 1936 postage stamps to commemorate the celebration in
honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion Manila of the 33rd International Eucharistic Congress sponsored by the Catholic Church.
nor interfering with religious matters or the religious beliefs of the barrio residents. One of the
highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the
placed in the church when the mass was celebrated. stamps showed a map of the Philippines and nothing about the Catholic Church. No religious
purpose was intended.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the
barrio, then any activity intended to facilitate the worship of the patron saint (such as the Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church,
acquisition and display of his image) cannot be branded as illegal. sought to enjoin the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event of a religious
character, was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit
was dismissed.

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil.
307, where a religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for
the purpose of raising funds to meet the expenses for the annual fiesta in honor of the Most Holy United States Supreme Court
Sacrament and the Virgin Lady of Guadalupe, was held accountable for the funds which it held EVERSON v. BOARD OF EDUCATION OF EWING TP., (1947)
as trustee. 0 No. 52
Argued: November 20, 1946 Decided: February 10, 1947
Finding that the petitioners have no cause of action for the annulment of the barangay
resolutions, the lower court's judgment dismissing their amended petition is affirmed. No costs. Rehearing Denied March 10, 1947

SO ORDERED. Appeal from the Court of Errors and Appeals of the State of New jersey. [330 U.S. 1, 2] Messrs.
Edward R. Burke and E. Hilton Jackson, both of Washington, D. C., for appellant.
Fernando C.J., Barredo, Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ.,
concur.1wph1.t Mr. William H. Speer, of Jersey City, for appellees.

Teehankee, J., concur in the result. Mr. Justice BLACK delivered the opinion of the Court.

Fernandez, J., Concepcion Jr. J., are on leave. A New Jersey statute authorizes its local school districts to make rules and contracts for the
transportation of children to and from schools. 1 The appellee, a township board of education,
acting pursuant to this statute authorized reimbursement to parents of money expended by them
for the bus transportation of their children on regular busses operated by the public
transportation system. Part of this money was for the payment of transportation of some children
in the community to Catholic parochial schools. These church schools give their students, in
addition to secular education, regular religious instruction conforming to the religious tenets and
modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.

The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the
right of the Board to reimburse parents of parochial school students. He [330 U.S. 1,
4] contended that the statute and the resolution passed pursuant to it violated both the State
and the Federal Constitutions. That court held hat the legislature was without power to authorize
such payment under the State constitution. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of
Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant
to it was in conflict with the State constitution or the provisions of the Federal Constitution in
issue. 133 N. J.L. 350, 44 A.2d 333. The case is here on appeal under 28 U.S.C. 344(a), 28
U.S.C.A. 344(a).

Since there has been no attack on the statute on the ground that a part of its language excludes
children attending private schools operated for profit from enjoying state payment for their
transportation, we need not consider this exclusionary language; it has no relevancy to any
constitutional question here presented. 2Furthermore, if the exclusion clause had been properly
challenged, we do not know whether New Jersey's highest court would construe its statutes as
precluding payment of the school [330 U.S. 1, 5] transportation of any group of pupils, even
those of a private school run for profit. 3 Consequently, we put to one side the question as to the
validity of the statute against the claim that it does not authorize payment for the transportation
generally of school children in New Jersey.

The only contention here is that the State statute and the resolution, in so far as they authorized
reimbursement to parents of children attending parochial schools, violate the Federal
Constitution in these two respects, which to some extent, overlap. First. They authorize the State
to take by taxation the private property of some and bestow it upon others, to be used for their
own private purposes. This, it is alleged violates the due process clause of the F urteenth
Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help
support and maintain schools which are dedicated to, and which regularly teach, the Catholic Second. The New Jersey statute is challenged as a 'law respecting an establishment of religion.'
Faith. This is alleged to be a use of State power to support church schools contrary to the The First Amendment, as made applicable to the states by the Fourteenth, Murdock v.
prohibition of the First Amendment which the Fourteenth Amendment made applicable to the Commonwealth of Pennsylvania,319 U.S. 105 , 63 S.Ct. 870, 872, 146 A.L.R. 81, commands
states. that a state 'shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.' These words of the First Amendment reflected in the minds of early Americans
First. The due process argument that the State law taxes some people to help others carry out a vivid mental picture of conditions and practices which they fervently wished to stamp out in
their private[330 U.S. 1, 6] purposes is framed in two phases. The first phase is that a state order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been
cannot tax A to reimburse B for the cost of transporting his children to church schools. This is entirely reached; but so far has the Nation moved toward it that the expression 'law respecting
said to violate the due process clause because the children are sent to these church schools to an establishment of religion,' probably does not so vividly remind present-day Americans of the
satisfy the personal desires of their parents, rather than the public's interest in the general evils, fears, and political problems that caused that expression to be written into our Bill of
education of all children. This argument, if valid, would apply equally to prohibit state payment Rights. Whether this New Jersey law is one respecting the 'establishment of religion' requires an
for the transportation of children to any non- public school, whether operated by a church, or any understanding of the meaning of that language, particularly with respect to the imposition of
other nongovernment individual or group. But, the New Jersey legislature has decided that a taxes. Once again,4 therefore, it is not inappropriate briefly to review the background and
public purpose will be served by using tax-raised funds to pay the bus fares of all school environment of the period in which that constitutional language was fashioned and adopted.
children, including those who attend parochial schools. The New Jersey Court of Errors and
Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public A large proportion of the early settlers of this country came here from Europe to escape the
need, coincides with the personal desires of the individuals most directly affected is certainly an bondage of laws which compelled them to support and attend government favored churches.
inadequate reason for us to say that a legislature has erroneously appraised the public need. The centuries immediately before and contemporaneous with the colonization of America had
been filled with turmoil, civil strife, and persecutions, generated in large part by established sects
It is true that this Court has, in rare instances, struck down state statutes on the ground that the determined to [330 U.S. 1, 9] maintain their absolute political and religious supremacy. With the
purpose for which tax-raised funds were to be expended was not a public one. Citizens' Savings power of government supporting them, at various times and places, Catholics had persecuted
& Loan Association v. City of Topeka, 20 Wall. 655; City of Parkersburg v. Brown, 106 U.S. 487 , Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other
1 S.Ct. 442; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55 , 57 S.Ct. 364. But the Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of
Court has also pointed out that this far-reaching authority must be exercised with the most belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to
extreme caution. Green v. Frazier, 253 U.S. 233, 240 , 40 S. Ct. 499, 501. Otherwise, a state's whatever religious group happened to be on top and in league with the government of a
power to legislate for the public welfare might be seriously curtailed, a power which is a primary particular time and place, men and women had been fined, cast in jail, cruelly tortured, and
reason for the existence of states. Changing local conditions create new local problems which killed. Among the offenses for which these punishments had been inflicted were such things as
may lead a state's people and its local authorities to believe that laws authorizing new types of speaking disrespectfully of the views of ministers of government-established churches,
public services are necessary to promote the general well-being [330 U.S. 1, 7] of the people. nonattendance at those churches, expressions of non-belief in their doctrines, and failure to pay
The Fourteenth Amendment did not strip the states of their power to meet problems previously taxes and tithes to support them. 5
left for individual solution. Davidson v. New Orleans, 96 U.S. 97, 103 , 104 S.; Barbier v.
Connolly, 113 U.S. 27, 31 , 32 S., 5 S.Ct. 357, 360; Fallbrook Irrigation District v. Bradley, 164 These practices of the old world were transplanted to and began to thrive in the soil of the new
U.S. 112, 157 , 158 S., 17 S.Ct. 56, 62, 63. America. The very charters granted by the English Crown to the individuals and companies
designated to make the laws which would control the destinies of the colonials authorized these
It is much too late to argue that legislation intended to facilitate the opportunity of children to get individuals and companies to erect religious establishments which all, whether believers or non-
a secular education serves no public purpose. Cochran v. Louisiana State Board of believers, would be required to support and attend. 6 An exercise of [330 U.S. 1, 10] this
Education, 281 U.S. 370 , 50 S. Ct. 335; Holmes, J., in Interstate Consolidated Street Ry. Co. v. authority was accompanied by a repetition of many of the old world practices and persecutions.
Commonwealth of Massachusetts, 207 U.S. 79, 87 , 28 S.Ct. 26, 27, 12 Ann.Cas. 555. See Catholics found themselves hounded and proscribed because of their faith; Quakers who
opinion of Cooley, J., in Stuart v. School District No. 1 of Village of Kalamazoo, 1878, 30 Mich. followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant
69. The same thing is no less true of legislation to reimburse needy parents, or all parents, for Protestant sects; men and women of varied faiths who happened to be in a minority in a
payment of the fares of their children so that they can ride in public busses to and from schools particular locality were persecuted because they steadfastly persisted in worshipping God only
rather than run the risk of traffic and other hazards incident to walking or 'hitchhiking.' See as their own consciences dictated.7 And all of these dissenters were compelled to pay tithes and
Barbier v. Connolly, supra, 113 U.S. at page 31, 5 S.Ct. at page 359. See also cases collected taxes8 to support government-sponsored churches whose ministers preached inflammatory
63 A.L.R. 413; 118 A.L.R. 806. Nor does it follow that a law has a private rather than a public sermons designed to strengthen and consolidate the established faith by generating a burning
purpose because it provides that tax-raised funds will be paid to reimburse i dividuals on account hatred against dissenters. [330 U.S. 1, 11] These practices became so commonplace as to
of money spent by them in a way which furthers a public program. See Carmichael v. Southern shock the freedom-loving colonials into a feeling of abhorrence. 9 The imposition of taxes to pay
Coal & Coke Co., 301 U.S. 495, 518 , 57 S.Ct. 868, 876, 109 A.L.R. 1327. Subsidies and loans ministers' salaries and to build and maintain churches and church property aroused their
to individuals such as farmers and home owners, and to privately owned transportation systems, indignation.10 It was these feelings which found expression in the First Amendment. No one
as well as many other kinds of businesses, have been commonplace practices in our state and locality and no one group throughout the Colonies can rightly be given entire credit for having
national history. aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing
religious liberty. But Virginia, where the established church had achieved a dominant influence in
political affairs and where many excesses attracted wide public attention, p ovided a great
Insofar as the second phase of the due process argument may differ from the first, it is by
stimulus and able leadership for the movement. The people there, as elsewhere, reached the
suggesting that taxation for transportation of children to church schools constitutes support of a
conviction that individual religious liberty could be achieved best under a government which was
religion by the State. But if the law is invalid for this reason, it is because it violates the First
stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere
Amendment's prohibition against the establishment of religion [330 U.S. 1, 8] by law. This is the
with the beliefs of any religious individual or group.
exact question raised by appellant's second contention, to consideration of which we now turn.
The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the abridging religious freedom. 22 There is every reason to give the sam application and broad
Virginia legislative body was about to renew Virginia's tax levy for the support of the established interpretation to the 'establishment of religion' clause. The interrelation of these complementary
church. Thomas Jeffer- [330 U.S. 1, 12] son and James Madison led the fight against this tax. clauses was well summarized in a statement of the Court of Appeals of South Carolina,23
Madison wrote his great Memorial and Remonstrance against the law. 11 In it, he eloquently quoted with approval by this Court, in Watson v. Jones, 13 Wall. 679, 730: 'The structure of our
argued that a true religion did not need the support of law; that no person, either believer or non- government has, for the preservation of civil liberty, rescued the temporal institutions from
believer, should be taxed to support a religious institution of any kind; that the best interest of a religious interference. On the other hand, it has secured religious liberty from the invasions of
society required that the minds of men always be wholly free; and that cruel persecutions were the civil authority.'
the inevitable result of government-established religions. Madison's Remonstrance received
strong support throughout Virginia, 12 and the Assembly postponed consideration of the The 'establishment of religion' clause of the First Amendment means at least this: Neither a state
proposed tax measure until its next session. When the proposal came up for consideration at nor the Federal Government can set up a church. Neither can pass laws which aid one religion,
that session, it not only died in committee, but the Assembly enacted the famous 'Virginia Bill for aid all religions, or prefer one religion over another. Neither can force nor influence a person to
Religious Liberty' originally written by Thomas Jefferson. 13 The preamble to that Bill stated go to or to remain away from church against his will or force him to profess a belief or disbelief in
among other things that any religion. No person can be punished for entertain- [330 U.S. 1, 16] ing or professing
religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount,
'Almighty God hath created the mind free; that all attempts to influence it by temporal large or small, can be levied to support any religious activities or institutions, whatever they may
punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the
meanness, and are [330 U.S. 1, 13] a departure from the plan of the Holy author of our religion Federal Government can, openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause against
who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . .;
establishment of religion by law was intended to erect 'a wall of separation between Church and
that to compel a man to furnish contributions of money for the propagation of opinions which he State.' Reynolds v. United States, supra, 98 U.S. at page 164.
disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of
his own religious persuasion, is depriving him of the comfortable liberty of giving his We must consider the New Jersey statute in accordance with the foregoing limitations imposed
contributions to the particular pastor, whose morals he would make his pattern ...' by the First Amendment. But we must not strike that state statute down if it is within the state's
constitutional power even though it approaches the verge of that power. See Interstate
And the statute itself enacted Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, Holmes, J., supra 207 U.S. at
85, 88, 28 S.Ct. 26, 27, 28, 12 Ann.Cas. 555. New Jersey cannot consistently with the
'That no man shall be compelled to frequent or support any religious worship, place, or ministry 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the
support of an institution which teaches the tenets and faith of any church. On the other hand,
whatsoever, nor shall be enforced, restrained, molested, or burthened, in his body or goods, nor
other language of the amendment commands that New Jersey cannot hamper its citizens in the
shall otherwise suffer on account of his religious opinions or belief. . . .'14 free exercise of their own religion. Consequently, it cannot exclude individual Catholics,
Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the
This Court has previously recognized that the provisions of the First Amendment, in the drafting members of any other faith, because of their faith, or lack of it, from receiving the benefits of
and adoption of which Madison and Jefferson played such leading roles, had the same objective public welfare legislation. While we do not mean to intimate that a state could not provide
and were intended to provide the same protection against governmental intrusion on religious transportation only to children attending public schools, we must be careful, in protecting the
liberty as the Virginia statute. Reynolds v. United States, supra, 98 U.S. at page 164; Watson v. citizens of New Jersey against state-established churches, to be sure that we do not
Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342 , 10 S.Ct. 299, 300. Prior to the inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens
adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against without regard to their religious belief[330 U.S. 1, 17] Measured by these standards, we cannot
the states. 15 Most of them did soon provide similar constitutional protections[330 U.S. 1, say that the First Amendment prohibits New Jersey from spending taxraised funds to pay the
14] for religious liberty. 16 But some states persisted for about half a century in imposing bus fares of parochial school pupils as a part of a general program under which it pays the fares
restraints upon the free exercise of religion and in discriminating against particular religious of pupils attending public and other schools. It is undoubtedly true that children are helped to get
groups. 17 In recent years, so far as the provision against the establishment of a religion is to church schools. There is even a possibility that some of the children might not be sent to the
concerned, the question has most frequently arisen in connection with proposed state aid to church schools if the parents were compelled to pay their children's bus fares out of their own
church schools and efforts to carry on religious teachings in the public schools in accordance pockets when transportation to a public school would have been paid for by the State. The same
with the tenets of a particular sect. 18 Some churches have either sought or accepted state possibility exists where the state requires a local transit company to provide reduced fares to
financial support for their schools. Here again the efforts to obtain state aid or acceptance of it school children including those attending parochial schools,24 or where a municipally owned
have not been limited to any one particular faith. 19 The state courts, in the main, have remained transportation system undertakes to carry all school children free of charge. Moreover, state-
faithful to the language of their own constitutional provisions designed to protect religious paid policemen, detailed to protect children going to and from church schools from the very real
freedom and to separate religious and governments. Their decisions, however, show the hazards of traffic, would serve much the same purpose and accomplish much the same result as
difficulty in drawing the line between tax legislation which provides funds for the welfare of the state provisions intended to guarantee free transportation of a kind which the state deems to be
general public and that which is designed to support institutions which teach religion. 20 best for the school children's welfare. And parents might refuse to risk their children to the
serious danger of traffic accidents going to and from parochial schools, the approaches to which
The meaning and scope of the First Amendment, preventing establishment of religion or were not protected by policemen. Similarly, parents might be reluctant to permit their children to
prohibiting the free exercise thereof, in the light of its history and the evils it [330 U.S. 1, attend schools which the state had cut off from such general government services as ordinary
15] was designed forever to suppress, have been several times elaborated by the decisions of police and fire protection, connections for sewage disposal, public [330 U.S. 1, 18] highways
this Court prior to the application of the First Amendment to the states by the Fourteenth. 21 The and sidewalks. Of course, cutting off church schools from these services, so separate and so
broad meaning given the Amendment by these earlier cases has been accepted by this Court in indisputably marked off from the religious function, would make it far more difficult for the
its decisions concerning an individual's religious freedom rendered since the Fourteenth schools to operate. But such is obviously not the purpose of the First Amendment. That
Amendment was interpreted to make the prohibitions of the First applicable to state action Amendment requires the state to be a neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power is no more to In addition to thus assuming a type of service that does not exist, the Court also insists that we
be used so as to handicap religions, than it is to favor them. must close our eyes to a discrimination which does exist. The resolution which authorizes
disbursement of this taxpayer's money limits reimbursement to those who attend public schools
This Court has said that parents may, in the discharge of their duty under state compulsory and Catholic schools. That is the way the Act is applied to this taxpayer.
education laws, send their children to a religious rather than a public school if the school meets
the secular educational requirements which the state has power to impose. See Pierce v. The New Jersey Act in question makes the character of the school, not the needs of the children
Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468. It appears that these parochial determine the eligibility of parents to reimbursement. The Act permits payment for transportation
schools meet New Jersey's requirements. The State contributes no money to the schools. It to parochial schools or public schools but prohibits it to private schools operated in whole or in
does not support them. Its legislation, as applied, does no more than provide a general program part for profit. Children often are sent to private schools because their parents feel that they
to help parents get their children, regardless of their religion, safely and expeditiously to and require more individual instruction than public schools can provide, or because they are
from accredited schools. backward or defective and need special attention. If all children of the state were objects of
impartial solicitude, no reason is obvious for denying transportation reimbursement to students
The First Amendment has erected a wall between church and state. That wall must be kept high of this class, for these often are as needy and as worthy as those who go to public or parochial
and impregnable. We could not approve the slightest breach. New Jersey has not breached it schools. Refusal to reimburse those who attend such schools is understandable only in the light
here. of a purpose to aid the schools, because the state might well abstain from aiding a profit-making
private enterprise. Thus, under the Act [330 U.S. 1, 21] and resolution brought to us by this
case children are classified according to the schools they attend and are to be aided if they
attend the public schools or private C tholic schools, and they are not allowed to be aided if they
attend private secular schools or private religious schools of other faiths.
Mr. Justice JACKSON, dissenting.
Of course, this case is not one of a Baptist or a Jew or an Episcopalian or a pupil of a private
I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, school complaining of discrimination. It is one of a taxpayer urging that he is being taxed for an
though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for unconstitutional purpose. I think he is entitled to have us consider the Act just as it is written. The
public schools, and also feel constrained by conscience and discipline to support other schools statement by the New Jersey court that it holds the Legislature may authorize use of local funds
for their own children. Such reli f to them as[330 U.S. 1, 19] this case involves is not in itself a 'for the transportation of pupils to any school,' 133 N.J.L. 350, 354, 44 A.2d 333, 337, in view of
serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this the other constitutional views expressed, is not a holding that this Act authorizes transportation
case convinces me otherwise. The Court's opinion marshals every argument in favor of state aid of all pupils to all schools. As applied to this taxpayer by the action he complains of, certainly the
and puts the case in its most favorable light, but much of its reasoning confirms my conclusions Act does not authorize reimbursement to those who choose any alternative to the public school
that there are no good grounds upon which to support the present legislation. In fact, the except Catholic Church schools.
undertones of the opinion, advocating complete and uncompromising separation of Church from
State, seem utterly discordant with its conclusion yielding support to their commingling in
If we are to decide this case on the facts before us, our question is simply this: Is it constitutional
educational matters. The case which irresistibly comes to mind as the most fitting precedent is
to tax this complainant to pay the cost of carrying pupils to Church schools of one specified
that of Julia who, according to Byron's reports, 'whispering 'I will ne'er consent,'- consented.'
The Court sustains this legislation by assuming two deviations from the facts of this particular
Whether the taxpayer constitutionally can be made to contribute aid to parents of students
case; first, it assumes a state of facts the record does not support, and secondly, it refuses to
because of their attendance at parochial schools depends upon the nature of those schools and
consider facts which are inescapable on the record.
their relation to the Church. The Constitution says nothing of education. It lays no obligation on
the states to provide schools and does not undertake to regulate state systems of education if
The Court concludes that this 'legislation, as applied, does no more than provide a general they see fit to maintain them. But they cannot, through school policy any more than through
program to help parents get their children, regardless of their religion, safely and expeditiously to other means, invade rights secured [330 U.S. 1, 22] to citizens by the Constitution of the United
and from accredited schools,' and it draws a comparison between 'state provisions intended to States. West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147
guarantee free transportation' for school children with services such as police and fire protection, A.L.R. 674. One of our basic rights is to be free of taxation to support a transgression of the
and implies that we are here dealing with 'laws authorizing new types of public services ...' This constitutional command that the authorities 'shall make no law respecting an establishment of
hypothesis permeates the opinion. The facts will not bear that construction. religion, or prohibiting the free exercise thereof.' U.S.Const., Amend. I; Cantwell v. State of
Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352.
The Township of Ewing is not furnishing transportation to the children in any form; it is not
operating school busses itself or contracting for their operation; and it is not performing any The function of the Church school is a subject on which this record is meager. It shows only that
public service of any kind with this[330 U.S. 1, 20] taxpayer's money. All school children are left the schools are under superintendence of a priest and that 'religion is taught as part of the
to ride as ordinary paying passengers on the regular busses operated by the public curriculum.' But we know that such schools are parochial only in name-they, in fact, represent a
transportation system. What the Township does, and what the taxpayer complains of, is at worldwide and age-old policy of the Roman Catholic Church. Under the rubric 'Catholic Schools,'
stated intervals to reimburse parents for the fares paid, provided the children attend either public the Canon Law of the Church by which all Catholics are bound, provides:
schools or Catholic Church schools. This expenditure of tax funds has no possible effect on the
child's safety or expedition in transit. As passengers on the public busses they travel as fast and
no faster, and are as safe and no safer, since their parents are reimbursed as before.
'1215. Catholic children are to be educated in schools where not only nothing contrary to It is of no importance in this situation whether the beneficiary of this expenditure of tax-raised
Catholic faith and morals is taught, but rather in schools where religious and moral training funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly
occupy the first place. ... ( Canon 1372.)' bestowed on the pupil with indirect benefits to the school. The state cannot maintain a Church
and it can no more tax its citizens to furnish free carriage to those who attend a Church The
prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or
'1216. In every elementary school the children must, according to their age, be instructed in
reimbursement of expense to individuals for receiving religious instruction and indoctrination.
Christian doctrine.
The Court, however, compares this to other subsidies and loans to individuals and says, 'Nor
'The young people who attend the higher schools are to receive a deeper religious knowledge, does it follow that a law has a private rather than a public purpose because [330 U.S. 1, 25] it
and the bishops shall appoint priests qualified for such work by their learning and piety. (Canon provides that tax-raised funds will be paid to reimburse individuals on account of money spent by
1373.)' them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke
Co., 301 U.S. 495, 518 , 57 S.Ct. 868, 876, 109 A.L.R. 1327.' Of course, the state may pay out
'1217. Catholic children shall not attend non-Catholic, indifferent, schools that are mixed, that is tax-raised funds to relieve pauperism, but it may not under our Constitution do so to induce or
to say, schools open to Catholic and non- Catholics alike. The bishop of the diocese only has the reward piety. It may spend funds to secure old age against want, but it may not spend funds to
secure religion against skepticism. It may compensate individuals for loss of employment, but it
right, in harmony with the instructions of the Holy See, to decide under what circumstances, and
cannot compensate them for adherence to a creed.
with what safe- [330 U.S. 1, 23] guards to prevent loss of faith, it may be tolerated that Catholic
children go to such schools. (Canon 1374.)' It seems to me that the basic fallacy in the Court's reasoning, which accounts for its failure to
apply the principles it avows, is in ignoring the essentially religious test by which beneficiaries of
'1224. The religious teaching of youth in any schools is subject to the authority and inspection of this expenditure are selected. A policeman protects a Catholic, of course-but not because he is a
the Church. Catho ic; it is because he is a man and a member of our society. The fireman protects the
Church school-but not because it is a Church school; it is because it is property, part of the
'The local Ordinaries have the right and duty to watch that nothing is taught contrary to faith or assets of our society. Neither the fireman nor the policeman has to ask before he renders aid 'Is
good morals, in any of the schools of their territory. this man or building identified with the Catholic Church.' But before these school authorities draw
a check to reimburse for a student's fare they must ask just that question, and if the school is a
Catholic one they may render aid because it is such, while if it is of any other faith or is run for
'They, moreover, have the right to approve the books of Christian doctrine and the teachers of profit, the help must be withheld. To consider the converse of the Court's reasoning will best
religion, and to demand, for the sake of safeguarding religion and morals, the removal of disclose its fallacy. That there is no parallel between police and fire protection and this plan of
teachers and books. ( Canon 1381.)' (Woywod, Rev. Stanislaus, The New Canon Law, under reimbursement is apparent from the incongruity of the limitation of this Act if applied to police
imprimatur of Most Rev. Francis J. Spellman, Archbishop of New York and others, 1940.) and fire service. Could we sustain an Act that said police shall protect pupils on the way to or
from public schools and Catholic schools but not [330 U.S. 1, 26] while going to and coming
It is no exaggeration to say that the whole historic conflict in temporal policy between the from other schools, and firemen shall extinguish a blaze in public or Catholic school buildings but
Catholic Church and non-Catholics comes to a focus in their respective school policies. The shall not put out a blaze in Protestant Church schools or private schools operated for profit? That
Roman Catholic Church, counseled by experience in many ages and many lands and with all is the true analogy to the case we have before us and I should think it pretty plain that such a
sorts and conditions of men, takes what, from the viewpoint of its own progress and the success scheme would not be valid.
of its mission, is a wise estimate of the importance of education to religion. It does not leave the
individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith The Court's holding is that this taxpayer has no grievance because the state has decided to
and order of the Church by the word and example of persons consecrated to the task. make the reimbursement a public purpose and therefore we are bound to regard it as such. I
agree that this Court has left, and always should leave to each state, great latitude in deciding
Our public school, if not a product of Protestantism, at least is more consistent with it than with for itself, in the light of its own conditions, what shall be public purposes in its scheme of things.
the Catholic culture and scheme of values. It is a relatively recent development dating from It may socialize utilities and economic enterprises and make taxpayers' business out of what
about 1840.1 It is organized on[330 U.S. 1, 24] the premise that secular education can be conventionally had been private business. It may make public business of individual welfare,
isolated from all religious teaching so that the school can inculcate all needed temporal health, education, entertainment or security. But it cannot make public business of religious
knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that worship or instruction, or of attendance at religious institutions of any character. There is no
after the individual has been instructed in worldly wisdom he will be better fitted to choose his answer to the proposition more fully expounded by Mr. Justice RUTLEDGE that the effect of the
religion. Whether such a disjunction is possible, and if possible whether it is wise, are questions I religious freedom Amendment to our Constitution was to take every form of propagation of
need not try to answer. religion out of the realm of things which could directly or indirectly be made public business and
thereby be supported in whole or in part at taxpayers' expense. That is a difference which the
Constitution sets up between religion and almost every other subject matter of legislation, a
I should be surprised if any Catholic would deny that the parochial school is a vital, if not the
difference which goes to the very root of religious freedom and which the Court is overlooking
most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I
today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it
should expect, would forego its whole service for mature persons before it would give up
was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the
education of the young, and it would be a wise choice. Its growth and cohesion, discipline and
states' hands out of religion, but to [330 U.S. 1, 27] keep religion's hands off the state, and
loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests,
above all, to keep bitter religious controversy out of public life by denying to every denomination
and to render tax aid to its Church school is indistinguishable to me from rendering the same aid
any advantage from getting control of public policy or the public purse. Those great ends I
to the Church itself.
cannot but think are immeasurably compromised by today's decision.
This policy of our Federal Constitution has never been wholly pleasing to most religious groups. This case forces us to determine squarely for the first time4 what was 'an establishment of
They all are quick to invoke its protections; they all are irked when they feel its restraints. This religion' in the First Amendment's conception; and by that measure to decide whether New
Court has gone a long way, if not an unreasonable way, to hold that public business of such Jersey's action violates its command. The facts may be stated shortly, to give setting and color
paramount importance as maintenance of public order, protection of the privacy of the home, to the constitutional problem.
and taxation may not be pursued by a state in a way that even indirectly will interfere with
religious proselyting. See dissent in Douglas v. Jeannette, 319 U.S. 157, 166 , 63 S. Ct. 877, By statute New Jersey has authorized local boards of education to provide for the transportation
882, 146 A.L.R. 81; Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81; of children 'to and from school other than a public school' except one [330 U.S. 1, 30] operated
Martin v. Struthers, 319 U.S. 141 , 63 S.Ct. 862; Jones v. Opelika, 316 U.S. 584 , 6 S.Ct. 1231, for profit wholly or in part over established public school routes, or by other means when the
141 A.L.R. 514, reversed on rehearing 319 U.S. 103 , 63 S.Ct. 890. child lives 'remote from any school.' 5 The school board of Ewing Township has provided by
resolution for 'the transportation of pupils of Ewing to the Trenton and Pennington High Schools
But we cannot have it both ways. Religious teaching cannot be a private affair when the state and Catholic Schools by way of public carrier. ...'6
seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to
taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem Named parents have paid the cost of public conveyance of their children from their homes in
harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Ewing to three public high schools and four parochial schools outside the
Constitution that alone assures Catholics the right to maintain these schools at all when district. 7 Semiannually the Board has reimbursed the parents from public school funds raised by
predominant local sentiment would forbid them. Pierce v. Society of Sisters,268 U.S. 510 , 45 general taxation. Religion is taught as part of the curriculum in each [330 U.S. 1, 31] of the four
S.Ct. 571, 39 A.L.R. 468. Nor should I think that those who have done so well without this aid private schools, as appears affirmatively by the testimony of the superintendent of parochial
would want to see this separation between Church and State broken down. If the state may aid schools in the Diocese of Trenton.
these religious schools, it may therefore regulate them. Many groups have sought aid from tax
funds only to find that it carried political controls with it. Indeed this Court has [330 U.S. 1,
The Court of Errors and Appeals of New Jersey, reversing the Supreme Court's decision, 132
28] declared that 'It is hardly lack of due process for the Government to regulate that which it
N.J.L. 98, 39 A.2d 75, has held the Ewing board's action not in contravention of the state
subsidizes.' Wickard v. Filburn, 317 U.S. 111, 131 , 63 S.Ct. 82, 92.
constitution or statutes or of the Federal Constitution. 133 N.J.L. 350, 44 A.2d 333. We have to
consider only whether this ruling accords with the prohibition of the First Amendment implied in
But in any event, the great purposes of the Constitution do not depend on the approval or the due process clause of the Fourteenth.
convenience of those they restrain. I cannot read the history of the struggle to separate political
from ecclesiastical affairs, well summarized in the opinion of Mr. Justice RUTLEDGE in which I I.
generally concur, without a conviction that the Court today is unconsciously giving the clock's
hands a backward turn.
Not simply an established church, but any law respecting an establishment of religion is forbidd
n. The Amendment was broadly but not loosely phrased. It is the compact and exact summation
Mr. Justice FRANKFURTER joins in this opinion.
of its author's views formed during his long struggle for religious freedom. In Madison's own
words characterizing Jefferson's Bill for Establishing Religious Freedom, the guaranty he put in
Mr. Justice RUTLEDGE, with whom Mr. Justice FRANKFURTER, Mr. Justice JACKSON and Mr. our national charter, like the bill he piloted through the Virginia Assembly, was 'a Model of
Justice BURTON agree, dissenting. technical precision, and perspicuous brevity.' 8 Madison could not have confused 'church' and
'religion,' or 'an established church' and 'an establishment or religion.'
'Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. ....' U.S.Const.Am. Art. I. The Amendment's purpose was not to strike merely at the official establishment of a single sect,
creed or religion, outlawing only a formal relation such as had prevailed in England and some of
'Well aware that Almighty God hath created the mind free; ... that to compel a man to furnish the colonies. Necessarily it was to uproot all such relationships. But the object was broader than
contributions of money for the propagation of opinions which he disbelieves, is sinful and separating church and state in this narrow sense. It was to create a complete and permanent
separation of the [330 U.S. 1, 32] spheres of religious activity and civil authority by
tyrannical; ...
comprehensively forbidding every form of public aid or support for religion. In proof the
Amendment's wording and history unite with this Court's consistent utterances whenever
'We, the General Assembly, do enact, That no man shall be compelled to frequent or support attention has been fixed directly upon the question.
any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested,
or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions 'Religion' appears only once in the Amendment. But the word governs two prohibitions and
or belief. ...'1 [330 U.S. 1, 29] I cannot believe that the great author of those words, or the men governs them alike. It does not have two meanings, one narrow to forbid 'an establishment' and
who made them law, could have joined in this decision. Neither so high nor so impregnable another, much broader, for securing 'the free exercise thereof.' 'Thereof' brings down 'religion'
today as yesterday is the wall raised between church and state by Virginia's great statute of with its entire and exact content, no more and no less, from the first into the second guaranty, so
religious freedom and the First Amendment, now made applicable to all the states by the that Congress and now the states are as broadly restricted concerning the one as they are
Fourteenth. 2 New Jersey's statute sustained is the first, if indeed it is not the second breach to regarding the other.
be made by this Court's action. That a third, and a fourth, and still others will be attempted, we
may be sure. For just as Cochran v. Louisiana State Board of Education, 281 U.S. 370 , 50 S.Ct. No one would claim today that the Amendment is constricted, in 'prohibiting the free exercise' of
335, has opened the way by oblique ruling3 for this decision, so will the two make wider the religion, to securing the free exercise of some formal or creedal observance, of one sect or of
breach for a third. Thus with time the most solid freedom steadily gives way before continuing many. It secures all forms of religious expression, creedal, sectarian or nonsectarian wherever
corrosive decision. and however taking place, except conduct which trenches upon the like freedoms of others or
clearly and presently endangers the community's good order and security. 9 For the protective
purposes of this phase of the basic freedom street preaching, oral or by distribution of [330 U.S. Madison was unyielding at all times, opposing with all his vigor the general and
1, 33] literature, has been given 'the same high estate under the First Amendment as ... nondiscriminatory as he had the earlier particular and discriminatory assessments proposed.
worship in the churches and preaching from the pulpits.' 10 And on this basis parents have been The modified Assessment Bill passed second reading in December, 1784, and was all but
held entitled to send their children to private, religious schools. Pierce v. Society of Sisters, 268 enacted. Madison and his followers, however, maneuvered deferment of final consideration until
U.S. 510 , 45 S.Ct. 571, 39 A.L.R. 468. Accordingly, daily religious education commingled with November, 1785. And before the Assembly reconvened in the fall he issued his historic
secular is 'religion' within the guaranty's comprehensive scope. So are religious training and Memorial and Remonstrance. 20
teaching in whatever form. The word connotes the broadest content, determined not by the form
or formality of the teaching or where it occurs, but by its essential nature regardless of those This is Madison's complete, though not his only, interpretation of religious liberty. 21 It is a
details. broadside attack upon all forms of 'establishment' of religion, both general and particular,
nondiscriminatory or selective. Reflecting not only the many legislative conflicts over the
'Religion' has the same broad significance in the twin prohibition concerning 'an establishment.' Assessment Bill and the Bill for Establishing Religious Freedom but also, for example, the
The Amendment was not duplicitous. 'Religion' and 'establishment' were not used in any formal struggles for religious incorporations and the continued maintenance of the glebes, the
or technical sense. The prohibition broadly forbids state support, financial or other, of religion in Remonstrance is at once the most concise and the most accurate statement of the views of the
First Amendment's author concerning what is 'an establishment of religion.' Because it behooves
any guise, form or degree. It outlaws all use of public funds for religious purposes.
us in the dimming distance of time not [330 U.S. 1, 38] to lose sight of what he and his
coworkers had in mind when, by a single sweeping stroke of the pen, they forbade an
II. establishment of religion and secured its free exercise, the text of the Remonstrance is
appended at the end of this opinion for its wider current reference, together with a copy of the bill
No provision of the Constitution is more closely tied to or given content by its generating history against which it was directed.
than the religious clause of the First Amendment. It is at once the refined product and the terse
summation of that history. The history includes not only Madison's authorship and the The Remonstrance, stirring up a storm of popular protest, killed the Assessment Bill. 22 It
proceedings before the First Congress, but also the long and intensive struggle for religious collapsed in committee shortly before Christmas, 1785. With this, the way was cleared at last for
freedom in America, more especially in Virginia,11 of which the Amend- [330 U.S. 1, 34] ment enactment of Jefferson's Bill for Establishing Religious Freedom. Madison promptly drove it
was the direct culmination. 12 In the documents of the times, particularly of Madison, who was through in January of 1786, seven years from the time it was first introduced. This dual victory
leader in the Virginia struggle before he became the Amendment's sponsor, but also in the substantially ended the fight over establishments, settling the issue against them. See note 33.
writings of Jefferson and others and in the issues which engendered them is to be found
irrefutable confirmation of the Amendment's sweeping content.
The next year Madison became a member of the Constitutional Convention. Its work done, he
fought valiantly to secure the ratification of its great product in Virginia as elsewhere, and
For Madison, as also for Jefferson, religious freedom was the crux of the struggle for freedom in nowhere else more effectively. 23Madison was certain in his own mind that under the
general. Remonstrance, Par. 15, Appendix hereto. Madison was coauthor with George Mason of Constitution 'there is not a shadow of right in the general government to intermeddle with
the religious clause in Virginia's great Declaration of Rights of 1776. He is credited with changing religion'24 and that 'this subject is, for the honor of America, perfectly free and [330 U.S. 1,
it from a mere statement of the principle of tolerance to the first official legislative 39] unshackled. The Government has no jurisdiction over it. . . .'25 Nevertheless he pledged
pronouncement that freedom of conscience and religion are inherent rights of the that he would work for a Bill of Rights, including a specific guaranty of religious freedom, and
individual. 13 He sought also to have the Declara- [330 U.S. 1, 35] tion expressly condemn the Virginia, ith other states, ratified the Constitution on this assurance. 26
existing Virginia establishment. 14 But the forces supporting it were then too strong.
Ratification thus accomplished, Madison was sent to the first Congress. There he went at once
Accordingly Madison yielded on this phase but not for long. At once he resumed the fight, about performing his pledge to establish freedom for the nation as he had done in Virginia.
continuing it before succeeding legislative sessions. As a member of the General Assembly in Within a little more than three years from his legislative victory at home he had proposed and
1779 he threw his full weight behind Jefferson's historic Bill for Establishing Religious Freedom. secured the submission and ratification of the First Amendment as the first article of our Bill of
That bill was a prime phase of Jefferson's broad program of democratic reform undertaken on Rights. 27
his return from the Continental Congress in 1776 and submitted for the General Assembly's
consideration in 1779 as his proposed revised Virginia code. 15 With Jefferson's departure for
All the great instruments of the Virginia struggle for religious liberty thus became warp and woof
Europe in 1784, Madison became the Bill's prime [330 U.S. 1, 36] sponser. 16 Enactment failed
of our constitutional tradition, not simply by the course of history, but by the common unifying
in successive legislatures from its introduction in June 1779, until its adoption in January, 1786.
force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the
But during all this time the fight for religious freedom moved forward in Virginia on various fronts
Amendment's compact, but nonetheless comprehensive, phrasing.
with growing intensity. Madison led throughout, against Patrick Henry's powerful opposing
leadership until Henry was elected governor in November, 1784.
As the Remonstrance discloses throughout, Madison opposed every form and degree of official
relation between religion and civil authority. For him religion was a wholly private matter beyond
The climax came in the legislative struggle of 1784-1785 over the Assessment Bill. See
the scope of civil power [330 U.S. 1, 40] either to restrain or to support. 28 Denial or
Supplemental Appendix hereto. This was nothing more nor less than a taxing measure for the
abridgment of religious freedom was a violation of rights both of conscience and of natural
support of religion, designed to revive the payment of tithes suspended since 1777. So long as it
equality. State aid was no less obnoxious or destructive to freedom and to religion itself than
singled out a particular sect for preference it incurred the active and general hostility of
other forms of state interference. 'Establishment' and 'free exercise' were correlative and
dissentient groups. It was broadened to include them, with the result that some subsided
coextensive ideas, representing only different facets of the single great and fundamental
temporarily in their opposition. 17 As altered, the bill gave to each taxpayer the privilege of
freedom. The Remonstrance, following the Virginia statute's example, referred to the history of
designating which church should receive his share of the tax. In default of designation the
religious conflicts and the effects of all sorts of establishments, current and historical, to
legislature applied it to pious uses. 18 But what is of the utmost significance here, 'in [330 U.S.
suppress religion's free exercise. With Jefferson, Madison believed that to tolerate any fragment
1, 37] its final form the bill left the taxpayer the option of giving his tax to education.' 19
of establishment would be by so much to perpetuate restraint upon that freedom. Hence he Believers of all faiths, and others who do not express their feeling toward ultimate issues of
sought to tear out the institution not partially but root and branch, and to bar its return forever. existence in any creedal form, pay the New Jersey tax. When the money so raised is used to
pay for transportation to religious schools, the Catholic taxpayer to the extent of his
In no phase was he more unrelentingly absolute than in opposing state support or aid by proportionate share pays for the transportation of Lutheran, Jewish and otherwise religiously
taxation. Not even 'three pence' contribution was thus to be exacted from any citizen for such a affiliated children to receive their non-Catholic religious instruction. Their parents likewise pay
purpose. Remonstrance, Par. 3.29[330 U.S. 1, 41] Tithes had been the life blood of proportionately for the transportation of Catholic children to receive Catholic instruction. Each
establishment before and after other compulsions disappeared. Madison and his coworkers thus contributes to 'the propagation of opinions which he disbelieves' in so far as their religious
made no exceptions or abridgments to the complete separation they created. Their objection differ, as do others who accept no creed without regard to those differences. Each [330 U.S. 1,
was not to small tithes. It was to any tithes whatsoever. 'If it were lawful to impose a small tax for 46] thus pays taxes also to support the teaching of his own religion, an exaction equally
religion the admission would pave the way for oppressive levies.' 30 Not the amount but 'the forbidden since it denies 'the comfortable liberty' of giving one's contribution to the particular
principle of assessment was wrong.' And the principle was as much to prevent 'the interference agency of instruction he approves. 39
of law in religion' as to restrain religious intervention in political matters. 31 In this field the
authors of our freedom would not tolerate 'the first experiment on our liberties' or 'wait till New Jersey's action therefore exactly fits the type of exaction and the kind of evil at which
usurped power had strengthened itself by exercise, and entangled the question in precedents.' Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of
Remonstrance, Par. 3. Nor should we. transportation is no part of the cost of education or of the religious instruction given. That it is a
substantial and a necessary element is shown most plainly by the continuing and increasing
In view of this history no further proof is needed that the Amendment forbids any appropriation, demand for the state to assume it. Nor is there pretense that it relates only to the secular
large or small, from public funds to aid or support any and all religious exercises. But if more instruction given in religious schools or that any attempt is or could be made toward allocating
were called for, the debates in the First Congress and this Court's consistent expressions, proportional shares as between the secular and the religious instruction. It is precisely because
whenever it has touched on the matter directly,32 supply it. [330 U.S. 1, 42] By contrast with th instruction is religious and relates to a particular faith, whether one or another, that parents
the Virginia history, the congressional debates on consideration of the Amendment reveal only send their children to religious schools under the Pierce doctrine. And the very purpose of the
sparse discussion, reflecting the fact that the essential issues had been settled. 33 Indeed the state's contribution is to defray the cost of conveying the pupil to the place where he will receive
matter had become so well understood as to have been taken for granted in all but formal not simply secular, but also and primarily religious, teaching and guidance.
phrasing. Hence, the only enlightening reference shows concern, not to preserve any power to
use public funds in aid of religion, but to prevent the Amendment from outlawing private gifts Indeed the view is sincerely avowed by many of various faiths,40 that the basic purpose of all
inadvertently by virtue of the breadth of its wording. 34 In the [330 U.S. 1, 43] margin are noted education is or should be religious, that the secular cannot be and should not be separated from
also the principal decisions in which expressions of this Court confirm the Amendment's broad the religious phase and emphasis. Hence, [330 U.S. 1, 47] the inadequacy of public or secular
prohibition. 35 [330 U.S. 1, 44] III. education and the necessity for sending the child to a school where religion is taught. But
whatever may be the philosophy or its justification, there is undeniably an admixture of religious
Compulsory attendance upon religious exercises went out early in the process of separating with secular teaching in all such institutions. That is the very reason for their being. Certainly for
church and state, together with forced observance of religious forms and ceremonies. 36 Test purposes of constitutionality we cannot contradict the whole basis of the ethical and educational
oaths and religious qualification for office followed later. 37 These things none devoted to our convictions of people who believe in religious schooling.
great tradition of religious liberty would think of bringing back. Hence today, apart from efforts to
inject religious training or exercises and sectarian issues into the public schools, the only serious Yet this very admixture is what was disestablished when the First Amendment forbade 'an
surviving threat to maintaining that complete and permanent separation of religion and civil establishment of religion.' Commingling the religious with the secular teaching does not divest
power which the First Amendment commands is through use of the taxing power to support the whole of its religious permeation and emphasis or make them of minor part, if proportion
religion, religious establishments, or establishments having a religious foundation whatever their were material. Indeed, on any other view, the constitutional prohibition always could be brought
form or special religious function. to naught by adding a modicum of the secular.

Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it An appropriation from the public treasury to pay the cost of transportation to Sunday school, to
does, if the test remains undiluted as Jefferson and Madison made it, that money taken by weekday special classes at the church or parish house, or to the meetings of various young
taxation from one is not to be used or given to support another's religious training or belief, or people's religious societies, such as the Y.M.C.A., the Y.M.C.A., the Y.M.H.A., the Epworth
indeed one's own. 38 Today as then the furnishing of 'con- [330 U.S. 1, 45] tributions of money League, could not withstand the constitutional attack. This would be true, whether or not secular
for the propagation of opinions which he disbelieves' is the forbidden exaction; and the activities were mixed with the religious. If such an appropriation could not stand, then it is hard to
prohibition is absolute for whatever measure brings that consequence and whatever mount may see how one becomes valid for the same thing upon the more extended scale of daily
be sought or given to that end. instruction. Surely constitutionality does not turn on where or how often the mixed teaching
The funds used here were raised by taxation. The Court does not dispute nor could it that their
use does in fact give aid and encouragement to religious instruction. It only concludes that this Finally, transportation, where it is needed, is as essential to education as any other element. Its
aid is not 'support' in law. But Madison and Jefferson were concerned with aid and support in cost is as much a part of the total expense, except at times in amount, as the cost of textbooks,
fact not as a legal conclusion 'entangled in precedents.' Remonstrance, Par. 3. Here parents pay of school lunches, of athletic equipment, of writing and other materials; indeed of all other [330
money to send their children to parochial schools and funds raised by taxation are used to U.S. 1, 48] items composing the total burden. Now as always the core of the educational
reimburse them. This not only helps the children to get to school and the parents to send them. It process is the teacher-pupil relationship. Without this the richest equipment and facilities would
aids them in a substantial way to get the very thing which they are sent to the particular school to go for naught. See Judd v. Board of Education, 278 N.Y. 200, 212, 15 N.E.2d 576, 118 A.L.R.
secure, namely, religious training and teaching. 789. But the proverbial Mark Hopkins conception no longer suffices for the country's
requirements. Without buildings, without equipment, without library, textbooks and other
materials, and without transportation to bring teacher and pupil together in such an effective
teaching environment, there can be not even the skeleton of what our times require. Hardly can This is precisely for the reason that education which includes religious training and teaching, and
it be maintained that transportation is the least essential of these items, or that it does not in fact its support, have been made matters of private right and function not public, by the very terms of
aid, encourage, sustain and support, just as they do, the very process which is its purpose to the First Amendment. That is the effect not only in its guaranty of religion's free exercise, but
accomplish. No less essential is it, or the payment of its cost, than the very teaching in the also in the prohibition of establishments. It was on this basis of the private character of the
classroom or payment of the teacher's sustenance. Many types of equipment, now considered function of religious education that this Court held parents entitled to send their children to
essential, better could be done without. private, religious schools. Pierce v. Society of Sisters, supra. Now it declares in effect that the
appropriation of public funds to defray part of the cost of attending those schools is for a public
For me, therefore, the feat is impossible to select so indispensable an item from the composite purpose. If so, I do not understand why the state cannot go father or why this case approaches
of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the the verge of its power.
propagation of beliefs which it is the very end of all to bring about. Unless this can be
maintained, and the Court does not maintain it, the aid thus given is outlawed. Payment of In truth this view contradicts the whole purpose and effect of the First Amendment as heretofore
transportation is no more, nor is it any the less essential to education, whether religious or conceived. The 'public function'-'public welfare'-' social legislation' argument seeks in Madison's
secular, than payment for tuitions, for teachers' salaries, for buildings, equipment and necessary words, to 'employ Religion (that is, here, religious education) as an engine of Civil policy.'
materials. Nor is it any the less directly related, in a school giving religious instruction, to the Remonstrance, Par. 5. It is of one piece with the Assessment Bill's preamble, although with the
primary religious objective all those essential items of cost are intended to achieve. No rational vital difference that it wholly ignores what that preamble explicitly states. 43 [330 U.S. 1,
line can be drawn between payment for such larger, but not more necessary, items and payment 52] Our constitutional policy is exactly the opposite. It does not deny the value or the necessity
for transportation. The only line that can be so drawn is one between more dollars and less. for religious training, teaching or observance. Rather it secures the r free exercise. But to that
Certainly in this [330 U.S. 1, 49] realm such a line can be no valid constitutional measure. end it does deny that the state can undertake or sustain them in any form or degree. For this
reason the sphere of religious activity, ad distinguished from the secular intellectual liberties, has
Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81; Thomas v. Collins, 323 been given the twofold protection and, as the state cannot forbid, neither can it perform or aid in
U.S. 516 , 65 S.Ct. 315. 41 Now, as in Madison's time, not the amount but the principle of performing the religious function. The dual prohibition makes that function altogether private. It
assessment is wrong. Remonstrance, Par. 3. cannot be made a public one by legislative act. This was the very heart of Madison's
Remonstrance, as it is of the Amendment itself.
It is not because religious teaching does not promote the public or the individual's welfare, but
because neither is furthered when the state promotes religious education, that the Constitution
But we are told that the New Jersey statute is valid in its present application because the
forbids it to do so. Both legislatures and courts are bound by that distinction. In failure to observe
appropriation is for a public, not a private purpose, namely, the promotion of education, and the
it lies the fallacy of the 'public function'-'social legislation' argument, a fallacy facilitated by easy
majority accept this idea in the conclusion that all we have here is 'public welfare legislation.' If
transference of the argument's basing from due process unrelated to any religious aspect to the
that is true and the Amendment's force can be thus destroyed, what has been said becomes all
First Amendment.
the more pertinent. For then there could be no possible objection to more extensive support of
religious education by New Jersey.
By no declaration that a gift of public money to religious uses will promote the general or
individual welfare, or the cause of education generally, can legislative bodies overcome the
If the fact alone be determinative that religious schools are engaged in education, thus
Amendment's bar. Nor may the courts sustain their attempts to do so by finding such
promoting the general and individual welfare, together with the legislature's decision that the
consequences for appropriations which in fact give aid to or promote religious uses. Cf. Norris v.
payment of public moneys for their aid makes their work a public function, then I can see no
Alabama, 294 U.S. 587, 590 , 55 S.Ct. 579, 580; Hooven & Allison Co. v. Evatt, 324 U.S. 652,
possible basis, except one of dubious legislative policy, for the state's refusal to make full
659 , 65 S.Ct. 870, 874; Akins v. Texas, 325 U.S. 398, 402 , 65 S.Ct. 1276, 1278. Legislatures
appropriation for support of private, religious schools, just as is done for public [330 U.S. 1,
are free to make, [330 U.S. 1, 53] and courts to sustain, appropriations only when it can be
50] instruction. There could not be, on that basis, valid constitutional objection. 42
found that in fact they do not aid, promote, encourage or sustain religious teaching or
observances, be the amount large or small. No such finding has been or could be made in this
Of course paying the cost of transportation promotes the general cause of education and the case. The Amendment has removed this form of promoting the public welfare from legislative
welfare of the individual. So does paying all other items of educational expense. And obviously, and judicial competence to make a public function. It is exclusively a private affair.
as the majority say, it is much too late to urge that legislation designed to facilitate the
opportunities of children to secure a secular education serves no public purpose. Our nationwide
The reasons underlying the Amendment's policy have not vanished with time or diminished in
system of public education rests on the contrary view, as do all grants in aid of education, public
force. Now as when it was adopted the price of religious freedom is double. It is that the church
or private, which is not religious in character.
and religion shall live both within and upon that freedom. There cannot be freedom of religion,
safeguarded by the state, and intervention by the church or its agencies in the state's domain or
These things are beside the real question. They have no possible materiality except to obscure dependency on its largesse. Madison's Remonstrance, Par. 6, 8.44 The great condition of
the all-pervading inescapable issue. Cf. Cochran v. Louisiana State Board of Education, supra. religious liberty is that it be maintained free from sustenance, as also from other interferences,
Stripped of its religious phase, the case presents no substantial federal question. Id. The public by the state. For when it comes to rest upon that secular foundation it vanishes with the resting.
function argument, by casting the issue in terms of promoting the general cause of education Id., Par. 7, 8.45 Public money devoted to payment of religious costs, educational or other, brings
and the welfare of the individual, ignores the religious factor and its essential connection with the the quest for more. It brings too the struggle of sect against sect for the larger share or for any.
transportation, thereby leaving out the only vital element in the case. So of course do the 'public Here one by numbers alone will benefit most, there another. That is precisely the history of
welfare' and 'social legislation' ideas, for they come to the same thing. [330 U.S. 1, 51] We societies which have had an established religion and dissident [330 U.S. 1, 54] groups. Id., Par.
have here then one substantial issue, not two. To say that New Jersey's appropriation and her 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against,
use of the power of taxation for raising the funds appropriated are not for public purposes but are whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other
for private ends, is to say that they are for the support of religion and religious teaching.
Conversely, to say that they are for public purposes is to say that they are not for religious ones.
than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or V.
all will embroil the state in their dissensions. Id., Par. 11.46
No one conscious of religious values can by unsympathetic toward the burden which our
Exactly such conflicts have centered of late around providing transportation to religious schools constitutional separation puts on parents who desire religious instruction mixed with secular for
from public funds. 47 The issue and the dissension work typically, in Madison's phrase, to their children. They pay taxes for others' children's education, at the same time the added cost of
'destroy that moderation and harmony which the forbearance of our laws to intermeddle with instruction for their own. Nor can one happily see benefits denied to children which others
Religion, has produced amongst its several sects.' Id., Par. 11. This occurs, as he well knew receive, because in conscience they or their parents for them desire a different kind of training
over measures [330 U.S. 1, 55] at the very threshold of departure from the principle. Id., Par. 3, others do not demand.
9, 11.
But if those feelings should prevail, there would be an end to our historic constitutional policy
In these conflicts wherever success has been obtained it has been upon the contention that by and command. No more unjust or discriminatory in fact is it to deny attendants at religious
providing the transportation the general cause of education, the general welfare, and the welfare schools the cost of their transportation than it is to deny them tuitions, sustenance for their
of the individual will be forwarded; hence that the matter lies within the realm of public function, teachers, or any other educational expense which others receive at public cost. Hardship in fact
for legislative determination. 48State courts have divided upon the issue, some taking the view there is which none can blink. But, for assuring to those who undergo it the greater, the most
that only the individual, others that the institution receives the benefit. 49 A few have recognized comprehensive freedom, it is one written by design and firm intent into our basic law.
that this dichotomy is false, that both in fact are aided. 50 [330 U.S. 1, 56] The majority here
does not accept in terms any of those views. But neither does it deny that the individual or the Of course discrimination in the legal sense does not exist. The child attending the religious
school, or indeed both, are benefited directly and substantially. 51 To do so would cut the school has the same right as any other to attend the public school. But he foregoes exercising it
ground from under the public function-social legislation thesis. On the contrary, the opinion because the same guaranty which assures this freedom forbids the public school or any agency
concedes that the children are aided by being helped to get to the religious schooling. By of the [330 U.S. 1, 59] state to give or aid him in securing the religious instruction he seeks.
converse necessary implication as well as by the absence of express denial, it must be taken to
concede also that the school is helped to reach the child with its religious teaching. The religious
Were he to accept the common school, he would be the first to protest the teaching there of any
enterprise is common to both, as is the interest in having transportation for its religious purposes
creed or faith not his own. And it is precisely for the reason that their atmosphere is wholly
secular that children are not sent to public schools under the Pierce doctrine. But that is a
constitutional necessity, because we have staked the very existence of our country on the faith
Notwithstanding the recognition that this two-way aid is given and the absence of any denial that that complete separation between the state and religion is best for the state and best for religion.
religious teaching is thus furthered, the Court concludes that the aid so given is not 'support' of Remonstrance, Par. 8, 12.
religion. It is rather only support of education as such, without reference to its religious content,
and thus becomes public welfare legislation. To this elision of the religious element from the
That policy necessarily entails hardship upon persons who forego the right to educational
case is added gloss in two respects, one that the aid extended partakes of the nature of a safety
advantages the state can supply in order to secure others it is precluded from giving. Indeed this
measure, the other that failure to provide it would make the state unneutral in religious matters,
may hamper the parent and the child forced by conscience to that choice. But it does not make
discriminating against or hampering such children concerning public benefits all others
the state unneutral to withhold what the Constitution forbids it to give. On the contrary it is only
receive. [330 U.S. 1, 57] As will be noted, the one gloss is contradicted by the facts of record
by observing the prohibition rigidly that the state can maintain its neutrality and avoid
and the other is of whole cloth with the 'public function' argument's excision of the religious
partisanship in the dissensions inevitable when sect opposes sect over demands for public
factor. 52 But most important is that this approach, if valid, supplies a ready method for nullifying
moneys to further religious education, teaching or training in any form or degree, directly or
the Amendment's guaranty, not only for this case and others involving small grants in aid for
indirectly. Like St. Paul's freedom, religious liberty with a great price must be bought. And for
religious education, but equally for larger ones. The only thing needed will be for the Court again
those who exercise it most fully, by insisting upon religious education for their children mixed
to transplant the 'public welfare-public function' view from its proper nonreligious due process
with secular, by the terms of our Constitution the price is greater than for others.
bearing to First Amendment application, holding that religious education is not 'supported'
though it may be aided by the appropriation, and that the cause of education generally is
furthered by helping the pupil to secure that type of training. The problem then cannot be cast in terms of legal discrimination or its absence. This would be
true, even though the state in giving aid should treat all religious instruction al ke. Thus, if the
present statute and its application were shown to apply equally to all religious schools [330 U.S.
This is not therefore just a little case over bus fares. In paraphrase of Madison, distant as it may
1, 60] of whatever faith,55 yet in the light of our tradition it could not stand. For then the
be in its present form from a complete establishment of religion, it differs from it only in degree;
adherent of one creed still would pay for the support of another, the childless taxpayer with
and is the first step in that direction. Id., Par. 9.53 Today as in his time 'the same authority which
others more fortunate. Then too there would seem to be no bar to making appropriations for
can force a citizen to contribute three pence only ... for the support of any one religious
transportation and other expenses of children attending public or other secular schools, after
establishment, may force him' to pay more; or 'to conform to any other establishment in all cases
hours in separate places and classes for their exclusively religious instruction. The person who
whatsoever.' And n w, as then, 'either ... we must say, that the will of the Legislature is the only
embraches no creed also would be forced to pay for teaching what he does not believe. Again, it
measure of their authority; and that in the plenitude of this authority, they may sweep away all
was the furnishing of 'contributions of money for the propagation of opinions which he
our fundamental rights; or, that they are bound to leave this particular right untouched and
disbelieves' that the fathers outlawed. That consequence and effect are not removed by
sacred.' Remonstrance, Par. 15.
multiplying to all-inclusiveness the sects for which support is exacted. The Constitution requires,
not comprehensive identification of state with religion, but complete separation.
The realm of religious training and belief remains, as the Amendment made it, the kingdom of
the individual[330 U.S. 1, 58] man and his God. It should be kept inviolately private, not
'entangled ... in precedents'54 or confounded with what legislatures legitimately may take over
into the public domain.
Short treatment will dispose of what remains. Whatever might be said of some other application No. 468
of New Jersey's statute, the one made here has no semblance of bearing as a safety measure
or, indeed, for securing expeditious conveyance. The transportation supplied is by public Argued April 3, 1962
conveyance, subject to all the hazards and delays of the highway and the streets incurred by the
public generally in going about its multifarious business.
Decided June 25, 1962

Nor is the case comparable to one of furnishing fire or police protection, or access to public
370 U.S. 421
highways. These things are matters of common right, part of the general [330 U.S. 1, 61] need
for safety. 56 Certainly the fire department must not stand idly by while the church burns. Nor is
this reason why the state should pay the expense of transportation or other items of the cost of CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
religious education. 57
Needless to add, we have no such case as Green v. Frazie , 253 U.S. 233 , 40 S.Ct. 499, or
Carmichael v. Southern Coal Co., 301 U.S. 495 , 57 S.Ct. 868, 109 A.L.R. 1327, which dealt Because of the prohibition of the First Amendment against the enactment of any law "respecting
with matters wholly unrelated to the First Amendment, involving only situations where the 'public an establishment of religion," which is made applicable to the States by the Fourteenth
function' issue was determinative. Amendment, state officials may not compose an official state prayer and require that it be recited
in the public schools of the State at the beginning of each school day -- even if the prayer is
I have chosen to place my dissent upon the broad ground I think decisive, though strictly denominationally neutral and pupils who wish to do so may remain silent or be excused from the
speaking the case might be decided on narrower issues. The New Jersey statute might be held
room while the prayer is being recited. Pp. 370 U. S. 422-436.
invalid on its face for the exclusion of chil- [330 U.S. 1, 62] dren who attend private, profit-
making schools. 58 I cannot assume, as does the majority, that the New Jersey courts would
write off this explicit limitation from the statute. Moreover, the resolution by which the statute was 10 N.Y.2d 174, 176 N.E.2d 579, reversed.
applied expressly limits its benefits to students of public and Catholic schools. 59 There is no
showing that there are no other private or religious schools in this populous district. 60I do not Page 370 U. S. 422
think it can be assumed there were none. 61 But in the view I have taken, it is unnecessary to
limit grounding to these matters. [330 U.S. 1, 63] Two great drives are constantly in motion to MR. JUSTICE BLACK delivered the opinion of the Court.
abridge, in the name of education, the complete division of religion and civil authority which our
forefathers made. One is to introduce religious education and observances into the public
The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New
schools. The other, to obtain public funds for the aid and support of various private religious
schools. See Johnson, The Legal Status of Church-State Relationships in the United States York, acting in its official capacity under state law, directed the School District's principal to
(1934); Thayer, Religion in Public Education (1947); Note (1941) 50 Yale L.J. 917. In my opinion cause the following prayer to be said aloud by each class in the presence of a teacher at the
both avenues were closed by the Constitution. Neither should be opened by this Court. The beginning of each school day:
matter is not one of quantity, to be measured by the amount of money expended. Now as in
Madison's day it is one of principle, to keep separate the separate spheres as the First "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon
Amendment drew them; to prevent the first experiment upon our liberties; and to keep the us, our parents, our teachers and our Country."
question from becoming entangled in corrosive precedents. We should not be less strict to keep
strong and untarnished the one side of the shield of religious freedom than we have been of the
This daily procedure was adopted on the recommendation of the State Board of Regents, a
governmental agency created by the State Constitution to which the New York Legislature has
The judgment should be reversed. granted broad supervisory, executive, and

Page 370 U. S. 423

legislative powers over the State's public school system. [Footnote 1] These state officials
composed the prayer which they recommended and published as a part of their "Statement on
Moral and Spiritual Training in the Schools," saying:

"We believe that this Statement will be subscribed to by all men and women of good will, and we
call upon all of them to aid in giving life to our program."
U.S. Supreme Court
Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the
Engel v. Vitale, 370 U.S. 421 (1962) parents of ten pupils brought this action in a New York State Court insisting that use of this
official prayer in the public schools was contrary to the beliefs, religions, or religious practices of
Engel v. Vitale both themselves and their children. Among other things, these parents challenged the
constitutionality of both the state law authorizing the School District to direct the use of prayer in
public schools and the School District's regulation ordering the recitation of this particular prayer
on the ground that these actions of official governmental agencies violate that part of the First which was created under governmental direction and which was approved by Acts of Parliament
Amendment of the Federal Constitution which commands that "Congress shall make no law in 1548 and 1549, [Footnote 5] set out in minute detail the accepted form and content of prayer
respecting an establishment of religion" -- a command which was "made applicable to the State and other religious ceremonies to be used in the established, tax supported Church of England.
of New York by the Fourteenth Amendment of the said Constitution." The New York Court of [Footnote 6] The controversies over the Book and what should be its content repeatedly
Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts threatened to disrupt the peace of that country as the accepted forms of prayer in the
which had upheld the power of New York to use the Regents' prayer as a part of the daily established church changed with the views of the particular ruler that happened to be in control
procedures of its public schools so long as the schools did not compel any pupil to join in the at the time. [Footnote 7] Powerful groups representing some of the varying religious views of the
prayer over his or his parents' objection. [Footnote 2] people struggled among themselves to impress their particular views upon the Government and

Page 370 U. S. 424 Page 370 U. S. 427

We granted certiorari to review this important decision involving rights protected by the First and obtain amendments of the Book more suitable to their respective notions of how religious
Fourteenth Amendments. [Footnote 3] services should be conducted in order that the official religious establishment would advance
their particular religious beliefs. [Footnote 8] Other groups, lacking the necessary political power
We think that, by using its public school system to encourage recitation of the Regents' prayer, to influence the Government on the matter, decided to leave England and its established church
the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. and seek freedom in America from England's governmentally ordained and supported religion.
There can, of course, be no doubt that New York's program of daily classroom invocation of
God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal It is an unfortunate fact of history that, when some of the very groups which had most
of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has strenuously opposed the established Church of England found themselves sufficiently in control
always been of colonial governments in this country to write their own prayers into law, they passed laws
making their own religion the official religion of their respective colonies. [Footnote 9] Indeed, as
Page 370 U. S. 425 late as the time of the Revolutionary

religious, none of the respondents has denied this, and the trial court expressly so found: Page 370 U. S. 428

"The religious nature of prayer was recognized by Jefferson, and has been concurred in by War, there were established churches in at least eight of the thirteen former colonies and
theological writers, the United States Supreme Court, and State courts and administrative established religions in at least four of the other five. [Footnote 10] But the successful Revolution
officials, including New York's Commissioner of Education. A committee of the New York against English political domination was shortly followed by intense opposition to the practice of
Legislature has agreed." establishing religion by law. This opposition crystallized rapidly into an effective political force in
Virginia, where the minority religious groups such as Presbyterians, Lutherans, Quakers and
"The Board of Regents as amicus curiae, the respondents, and intervenors all concede the Baptists had gained such strength that the adherents to the established Episcopal Church were
religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual actually a minority themselves. In 1785-1786, those opposed to the established Church, led by
heritage. . . . [Footnote 4]" James Madison and Thomas Jefferson, who, though themselves not members of any of these
dissenting religious groups, opposed all religious establishments by law on grounds of principle,
The petitioners contend, among other things, that the state laws requiring or permitting use of obtained the enactment of the famous "Virginia Bill for Religious Liberty" by which all religious
the Regents' prayer must be struck down as a violation of the Establishment Clause because groups were placed on an equal footing so far as the State was concerned. [Footnote 11] Similar
that prayer was composed by governmental officials as a part of a governmental program to though less far-reaching
further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer
in its public school system breaches the constitutional wall of separation between Church and Page 370 U. S. 429
State. We agree with that contention, since we think that the constitutional prohibition against
laws respecting an establishment of religion must at least mean that, in this country, it is no part legislation was being considered and passed in other states. [Footnote 12]
of the business of government to compose official prayers for any group of the American people
to recite as a part of a religious program carried on by government. By the time of the adoption of the Constitution, our history shows that there was a widespread
awareness among many Americans of the dangers of a union of Church and State. These
It is a matter of history that this very practice of establishing governmentally composed prayers people knew, some of them from bitter personal experience, that one of the greatest dangers to
for religious services was one of the reasons which caused many of our early colonists to leave the freedom of the individual to worship in his own way lay in the Government's placing its
England and seek religious freedom in America. The Book of Common Prayer, official stamp of approval upon one particular kind of prayer or one particular form of religious
services. They knew the anguish, hardship and bitter strife that could come when zealous
Page 370 U. S. 426 religious groups struggled with one another to obtain the Government's stamp of approval from
each King, Queen, or Protector that came to temporary power. The Constitution was intended to
avert a part of this danger by leaving the government of this country in the hands of the people,
rather than in the hands of any monarch. But this safeguard was not enough. Our Founders thus stands as an expression of principle on the part of the Founders of our Constitution that
were no more willing to let the content of their prayers and their privilege of praying whenever religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil
they pleased be influenced by the ballot box than they were to let these vital matters of personal magistrate. [Footnote 15] Another purpose of the Establishment Clause rested upon an
conscience depend upon the succession of monarchs. The First Amendment was added to the awareness of the historical fact that governmentally established religions and religious
Constitution to stand as a guarantee that neither the power nor the prestige of the Federal persecutions go hand in hand. [Footnote 16] The Founders knew that, only a few years after the
Government would be used to control, support or influence the kinds of prayer the American Book of Common Prayer became the only accepted form of religious services in the established
people can say -- Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those
services and to make it a criminal offense to conduct or attend religious gatherings of any other
Page 370 U. S. 430 kind [Footnote 17] -- a law

that the people's religions must not be subjected to the pressures of government for change Page 370 U. S. 433
each time a new political administration is elected to office. Under that Amendment's prohibition
against governmental establishment of religion, as reinforced by the provisions of the Fourteenth which was consistently flouted by dissenting religious groups in England and which contributed
Amendment, government in this country, be it state or federal, is without power to prescribe by to widespread persecutions of people like John Bunyan who persisted in holding "unlawful
law any particular form of prayer which is to be used as an official prayer in carrying on any [religious] meetings . . . to the great disturbance and distraction of the good subjects of this
program of governmentally sponsored religious activity. kingdom. . . ." [Footnote 18] And they knew that similar persecutions had received the sanction
of law in several of the colonies in this country soon after the establishment of official religions in
There can be no doubt that New York's state prayer program officially establishes the religious those colonies. [Footnote 19] It was in large part to get completely away from this sort of
beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is systematic religious persecution that the Founders brought into being our Nation, our
largely based upon the contention that the Regents' prayer is "nondenominational" and the fact Constitution, and our Bill of Rights, with its prohibition against any governmental establishment
that the program, as modified and approved by state courts, does not require all pupils to recite of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both
the prayer, but permits those who wish to do so to remain silent or be excused from the room, with the purposes of the Establishment Clause and with the Establishment Clause itself.
ignores the essential nature of the program's constitutional defects. Neither the fact that the
prayer may be denominationally neutral nor the fact that its observance on the part of the It has been argued that to apply the Constitution in such a way as to prohibit state laws
students is voluntary can serve to free it from the limitations of the Establishment Clause, as it respecting an
might from the Free Exercise Clause, of the First Amendment, both of which are operative
against the States by virtue of the Fourteenth Amendment. Although these two clauses may, in Page 370 U. S. 434
certain instances, overlap, they forbid two quite different kinds of governmental encroachment
upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not establishment of religious services in public schools is to indicate a hostility toward religion or
depend upon any showing of direct governmental compulsion and is violated by the enactment toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from
of laws which establish an official religion whether those laws operate directly to coerce the history of religion. And perhaps it is not too much to say that, since the beginning of that
nonobserving individuals or not. This is not to say, of course, that history, many people have devoutly believed that "More things are wrought by prayer than this
world dreams of." It was doubtless largely due to men who believed this that there grew up a
Page 370 U. S. 431 sentiment that caused men to leave the cross-currents of officially established state religions and
religious persecution in Europe and come to this country filled with the hope that they could find
laws officially prescribing a particular form of religious worship do not involve coercion of such a place in which they could pray when they pleased to the God of their faith in the language they
individuals. When the power, prestige and financial support of government is placed behind a chose. [Footnote 20] And there were men of this same faith in the
particular religious belief, the indirect coercive pressure upon religious minorities to conform to
the prevailing officially approved religion is plain. But the purposes underlying the Establishment Page 370 U. S. 435
Clause go much further than that. Its first and most immediate purpose rested on the belief that
a union of government and religion tends to destroy government and to degrade religion. The power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights
history of governmentally established religion, both in England and in this country, showed that with the very guarantees of religious freedom that forbid the sort of governmental activity which
whenever government had allied itself with one particular form of religion, the inevitable result New York has attempted here. These men knew that the First Amendment, which tried to put an
had been that it had incurred the hatred, disrespect and even contempt of those who held end to governmental control of religion and of prayer, was not written to destroy either. They
contrary beliefs. [Footnote 13] That same history showed that many people had lost their respect knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out
for any religion that had relied upon the support of government to spread its faith. [Footnote 14] of an awareness that governments of the past had shackled men's tongues to make them speak
The Establishment Clause only the religious thoughts that government wanted them to speak and to pray only to the God
that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that
Page 370 U. S. 432 each separate government in this country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious function to the people themselves and
to those the people choose to look to for religious guidance. [Footnote 21]
Page 370 U. S. 436

It is true that New York's establishment of its Regents' prayer as an officially approved religious
doctrine of that State does not amount to a total establishment of one particular religious sect to
the exclusion of all others -- that, indeed, the governmental endorsement of that prayer seems
relatively insignificant when compared to the governmental encroachments upon religion which
were commonplace 200 years ago. To those who may subscribe to the view that, because the
Regents' official prayer is so brief and general there can be no danger to religious freedom in its
governmental establishment, however, it may be appropriate to say in the words of James
Madison, the author of the First Amendment:

"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the
same authority which can establish Christianity, in exclusion of all other Religions, may establish
with the same ease any particular sect of Christians, in exclusion of all other Sects? That the
same authority which can force a citizen to contribute three pence only of his property for the
support of any one establishment may force him to conform to any other establishment in all
cases whatsoever? [Footnote 22]"

The judgment of the Court of Appeals of New York is reversed, and the cause remanded for
further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE FRANKFURTER took no part in the decision of this case.

MR. JUSTICE WHITE took no part in the consideration or decision of this case.


[G.R. No. 153888. July 9, 2003]


Office of the President of the Philippines, herein represented by HON. ALBERTO G.
ROMULO, Executive Secretary, and the OFFICE ON MUSLIM AFFAIRS, herein represented
by its Executive Director, HABIB MUJAHAB HASHIM, respondents.


Before us is a petition for prohibition filed by petitioner Islamic Dawah Council of the Philippines, Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the
Inc. (IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the 1987 Constitution which respectively provide:
prohibition of herein respondents Office of the Executive Secretary and Office of Muslim Affairs
(OMA) from implementing the subject EO. ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS

Petitioner IDCP, a corporation that operates under Department of Social Welfare and Sec. 15. The State shall respect the role of independent peoples organizations to enable the
Development License No. SB-01-085, is a non-governmental organization that extends voluntary people to pursue and protect, within the democratic framework, their legitimate and collective
services to the Filipino people, especially to Muslim communities. It claims to be a federation of interests and aspirations through peaceful and lawful means.
national Islamic organizations and an active member of international organizations such as the
Regional Islamic Dawah Council of Southeast Asia and the Pacific (RISEAP)[1] and The World Peoples organizations are bona fide associations of citizens with demonstrated capacity to
Assembly of Muslim Youth. The RISEAP accredited petitioner to issue halal[2] certifications in the promote the public interest and with identifiable leadership, membership, and structure.
Philippines. Thus, among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified products and Sec. 16. The rights of the people and their organizations to effective and reasonable
manufacturers. participation at all levels of social, political, and economic decision-making shall not be
abridged. The State shall, by law, facilitate, the establishment of adequate consultation
Petitioner alleges that, on account of the actual need to certify food products as halal and also mechanisms.
due to halal food producers request, petitioner formulated in 1995 internal rules and procedures
based on the Quran[3] and the Sunnah[4] for the analysis of food, inspection thereof and issuance According to petitioner, the subject EO was issued with utter haste and without even consulting
of halal certifications. In that same year, petitioner began to issue, for a fee, certifications to Muslim peoples organizations like petitioner before it became effective.
qualified products and food manufacturers. Petitioner even adopted for use on its halal
certificates a distinct sign or logo registered in the Philippine Patent Office under Patent No. 4- We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) to ensure the integration
On October 26, 2001, respondent Office of the Executive Secretary issued EO 46[5] creating the of Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs,
Philippine Halal Certification Scheme and designating respondent OMA to oversee its customs, traditions, and institutions.[8] OMA deals with the societal, legal, political and economic
implementation. Under the EO, respondent OMA has the exclusive authority to issue halal concerns of the Muslim community as a national cultural community and not as a religious
certificates and perform other related regulatory activities. group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter
must make sure that OMA does not intrude into purely religious matters lest it violate the non-
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing Illegal Halal Certification was establishment clause and the free exercise of religion provision found in Article III, Section 5 of
published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned the 1987 Constitution.[9]
Muslim consumers to buy only products with its official halal certification since those without said
certification had not been subjected to careful analysis and therefore could contain pork or its Freedom of religion was accorded preferred status by the framers of our fundamental law. And
derivatives. Respondent OMA also sent letters to food manufacturers asking them to secure the this Court has consistently affirmed this preferred status, well aware that it is "designed to
halal certification only from OMA lest they violate EO 46 and RA 4109. [6]As a result, petitioner protect the broadest possible liberty of conscience, to allow each man to believe as his
lost revenues after food manufacturers stopped securing certifications from it. 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]
Hence, this petition for prohibition.
Without doubt, classifying a food product as halal is a religious function because the standards
Petitioner contends that the subject EO violates the constitutional provision on the separation of used are drawn from the Quran and Islamic beliefs. By giving OMA the exclusive power to
Church and State.[7] It is unconstitutional for the government to formulate policies and guidelines classify food products as halal, EO 46 encroached on the religious freedom of Muslim
on the halal certification scheme because said scheme is a function only religious organizations, organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for
entity or scholars can lawfully and validly perform for the Muslims. According to petitioner, a food Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State
product becomes halal only after the performance of Islamic religious ritual and prayer. Thus, has in effect forced Muslims to accept its own interpretation of the Quran and Sunnah on halal
only practicing Muslims are qualified to slaughter animals for food. A government agency like food.
herein respondent OMA cannot therefore perform a religious function like certifying qualified
food products as halal. To justify EO 46s intrusion into the subject religious activity, the Solicitor General argues that the
freedom of religion is subservient to the police power of the State. By delegating to OMA the
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 authority to issue halal certifications, the government allegedly seeks to protect and promote the
Constitution which provides that (n)o law impairing the obligation of contracts, shall be passed. muslim Filipinos right to health, and to instill health consciousness in them.
After the subject EO was implemented, food manufacturers with existing contracts with petitioner
ceased to obtain certifications from the latter. We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the their Islamic beliefs, are not fit for human intake. These are the non-secular steps put in place by
community can justify the infringement of religious freedom.[11] If the government fails to show the State to ensure that the Muslim consumers right to health is protected. The halal
the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. In certifications issued by petitioner and similar organizations come forward as the official religious
a society with a democratic framework like ours, the State must minimize its interference with the approval of a food product fit for Muslim consumption.
affairs of its citizens and instead allow them to exercise reasonable freedom of personal and
religious activity. We do not share respondents apprehension that the absence of a central administrative body to
regulate halal certifications might give rise to schemers who, for profit, will issue certifications for
In the case at bar, we find no compelling justification for the government to deprive Muslim products that are not actually halal. Aside from the fact that Muslim consumers can actually
organizations, like herein petitioner, of their religious right to classify a product as halal, even on verify through the labels whether a product contains non-food substances, we believe that they
the premise that the health of Muslim Filipinos can be effectively protected by assigning to OMA are discerning enough to know who the reliable and competent certifying organizations in their
the exclusive power to issue halal certifications. The protection and promotion of the Muslim community are. Before purchasing a product, they can easily avert this perceived evil by a
Filipinos right to health are already provided for in existing laws and ministered to by government diligent inquiry on the reliability of the concerned certifying organization.
agencies charged with ensuring that food products released in the market are fit for human
consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2001, is hereby declared NULL
religious freedom of Muslims. AND VOID. Consequently, respondents are prohibited from enforcing the same.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection SO ORDERED.
Commission (NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered
animals intended for human consumption to ensure the safety of the meat released in the Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-
market. Another law, RA 7394, otherwise known as The Consumer Act of 1992, gives to certain Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
government departments the duty to protect the interests of the consumer, promote his general
welfare and to establish standards of conduct for business and industry. [12] To this end, a food Puno, J., concur with the opinion of J., Vitug.
product, before its distribution to the market, is required to secure the Philippine Standard
Certification Mark after the concerned department inspects and certifies its compliance with Vitug, J., please see Separate Opinion.
quality and safety standards.[13]
Quisumbing, Sandoval-Gutierrez, J., on official leave
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD)
of the Department of Health (DOH). Under Article 22 of said law, BFD has the duty to
promulgate and enforce rules and regulations fixing and establishing a reasonable definition and
standard of identity, a standard of quality and a standard of fill of containers for food. The BFD
also ensures that food products released in the market are not adulterated.[14]

Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked
to protect the consumer against deceptive, unfair and unconscionable sales acts or practices as
defined in Article 50.[15] DTI also enforces compulsory labeling and fair packaging to enable the
consumer to obtain accurate information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of such products. [16]

With these regulatory bodies given detailed functions on how to screen and check the quality
and safety of food products, the perceived danger against the health of Muslim and non-Muslim
Filipinos alike is totally avoided. Of great help are the provisions on labeling of food products
(Articles 74 to 85)[17] of RA 7394. In fact, through these labeling provisions, the State ably
informs the consuming public of the contents of food products released in the market. Stiff
sanctions are imposed on violators of said labeling requirements.

Through the laws on food safety and quality, therefore, the State indirectly aids Muslim
consumers in differentiating food from non-food products. The NMIC guarantees that the meat
sold in the market has been thoroughly inspected and fit for consumption. Meanwhile, BFD
ensures that food products are properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the DTI, Muslim consumers are
adequately apprised of the products that contain substances or ingredients that, according to

[G.R. No. 138572. October 10, 2000]


vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of
Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose

Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as
President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]




Confronting the Court for resolution in the instant consolidated petitions for certiorari and