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G.R. No. 173034. October 9, 2007.*
PHARMACEUTICAL and HEALTH CARE ASSOCIATION of the PHILIPPINES,
petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH
UNDERSECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY.
ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,
respondents.
Judicial Review; Locus Standi; Associations; An organization has standing to assert the
concerns of its constituents—it is but the medium through which its individual members seek to
make more effective the expression of their voices and the redress of their grievances.—With
regard to the issue of whether petitioner may prosecute this case as the real party-in-interest,
the Court adopts the view enunciated in Executive Secretary v. Court of Appeals, 429 SCRA 81
(2004), to wit: The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members. An
association has standing to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has standing to assert the concerns
of its constituents. x x x x x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x to act as the representative of any individual, company, entity
or association on matters related to the manpower recruitment industry, and to perform other
acts and activities necessary to accomplish the purposes embodied
_______________
*
EN BANC.
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therein. The respondent is, thus, the appropriate party to assert the rights of its
members, because it and its members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its individual members seek
to make more effective the expression of their voices and the redress of their
grievances (Emphasis supplied), which was reasserted in Purok Bagong Silang Association,
Inc. v. Yuipco, 489 SCRA 382 (2006), where the Court ruled that an association has the legal
personality to represent its members because the results of the case will affect their vital
interests.
International Law; Treaties; Doctrine of Incorporation and Doctrine of
Transformation; Words and Phrases; Under the 1987 Constitution, international law can
become part of the sphere of domestic law either by transformation or incorporation; Treaties
become part of the law of the land through transformation pursuant to Article VII, Section 21 of
the Constitution.—Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law. Treaties become part
of the law of the land through transformationpursuant to Article VII, Section 21 of the
Constitution which provides that “[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate.” Thus,
treaties or conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.
Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly
(WHA); International Code of Marketing of Breastmilk Substitutes
(ICMBS); Advertisements; While the International Code of Marketing of Breastmilk Substitutes
(ICMBS) and World Health Assembly (WHA) Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate, the International Code of
Marketing of Breastmilk Substitutes (ICMBS) which was adopted by the World Health Assembly
(WHA) in 1981 had been transformed into domestic law through local legislation, the
Milk Code; The Milk Code is almost a verbatim reproduction of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), but the Code did not adopt the provision in the
International Code of Marketing of Breastmilk Substitutes (ICMBS) absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
International Code of Marketing of Breastmilk Substitutes (ICMBS).—The ICMBS and WHA
Resolutions are not treaties as they have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se. The Milk Code is almost
a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did
not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the ICMBS. Instead, the Milk
Code expressly provides that advertising, promotion, or other marketing materials may
be allowed if such materials are duly authorized and approved by the Inter-Agency
Committee (IAC).
Same; Same; Same; Generally Accepted Principles of Law; Section 2, Article II of the
1987 Constitution, whereby the Philippines adopts the generally accepted principles of
international law as part of the law of the land, embodies the incorporation method.—Section 2,
Article II of the 1987 Constitution, to wit: “SECTION 2. The Phil-ippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations (Emphasis supplied),” embodies
the incorporation method.
Same; Same; Same; Same; Words and Phrases; Generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations; “Generally accepted principles of
international law” refers to norms of general or customary international law which are binding on
all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign
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immunity, a person’s right to life, liberty and due process, and pacta sunt servanda,
among others.—In Mijares v. Ranada, 455 SCRA 399 (2005) the Court held thus: [G]enerally
accepted principles of international law, by virtue of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted as bindingresult
from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of
a rule of law requiring it. (Emphasis supplied) “Generally accepted principles of international
law” refers to norms of general or customary international law which are binding on all
states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign
immunity, a person’s right to life, liberty and due process, and pacta sunt servanda, among
others. The concept of “generally accepted principles of law” has also been depicted in this
wise: Some legal scholars and judges look upon certain “general principles of law” as a primary
source of international law because they have the “character of jus rationale” and are “valid
through all kinds of human societies.”(Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O’Connell holds that certain priniciples are part of
international law because they are “basic to legal systems generally” and hence part of
the jus gentium. These principles, he believes, are established by a process of reasoning
based on the common identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law principle provides a
just and acceptable solution. x x x (Emphasis supplied)
 Same; Same; Same; Same; Same; Customary International Law; Custom or customary
international law means “a general and consistent practice of states followed by them from a
sense of legal obligation [opinio juris],” which statement contains the two basic elements of
custom: the material factor, that is, how states behave, and, the psychological or subjective
factor, that is, why they behave the way they do; Customary international law is deemed
incorporated into our domestic system.—Fr. Joaquin G. Bernas defines customary
269
international law as follows: Custom or customary international law means “a general and
consistent practice of states followed by them from a sense of legal obligation[opinio juris].”
(Restatement) This statement contains the two basic elements of custom: the material
factor, that is, how states behave, and the psychological orsubjective factor, that is, why
they behave the way they do. x x x x The initial factor for determining the existence of custom
is the actual behavior of states. This includes several elements: duration, consistency, and
generality of the practice of states. The required duration can be either short or long. x x x x x x
x Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x x x x x Once the existence of state practice has been
established, it becomes necessary to determine why states behave the way they do. Do states
behave the way they do because they consider it obligatory to behave thus or do they do it
only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior
isobligatory, is what makes practice an international rule. Without it, practice is not law.
(Italics and Emphasis supplied) Clearly customary international law is deemed incorporated into
our domestic system.
Same; Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly
(WHA); While regulations, along with conventions and agreements, duly adopted by the World
Health Assembly (WHA) bind member states, recommendations of the World Health Assembly
(WHA) do not come into force for members, in the same way that conventions or agreements
and regulations come into force.—Regulations, along with conventions and agreements, duly
adopted by the WHA bind member statesthus: x x x On the other hand, under Article 23,
recommendations of the WHA do not come into forcefor members, in the same way that
conventions or agreements under Article 19 and regulations under Article 21come into force.
Article 23 of the WHO Constitution reads: Article 23. The Health Assembly shall have authority
to make recommendations to Members with respect to any matter within the competence of
the Organization. (Emphasis supplied) The absence of a provision in Article 23 of any
mechanism by which the recommendation would come into force for member states is
conspicuous.
270
Same; Same; Same; Same; Same; Same; International Code of Marketing of Breastmilk
Substitutes (ICMBS); Unlike what has been done with the International Code of Marketing of
Breastmilk Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law
which is the Milk Code, the subsequent World Health Assembly (WHA) Resolutions, specifically
providing for exclusive breast-feeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions of breast-milk substitutes,
have not been adopted as a domestic law.—The WHA Resolution adopting the ICMBS and
subsequent WHA Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS
whereby the legislature enacted most of the provisions into law which is the Milk Code,
the subsequent WHA Resolutions, specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeed-ing up to 24 months, and absolutely prohibiting
advertisements and promotions of breastmilk substitutes, have not been adopted as a
domestic law.
Same; Same; Same; Same; Same; Same; Same; Soft Law;Words and Phrases; While
“soft law” does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice, it is, however, an expression
of non-binding norms, principles, and practices that influence state behavior.—It is propounded
that WHA Resolutions may constitute “soft law” or non-binding norms, principles and practices
that influence state behavior. “Soft law” does not fall into any of the categories of international
law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. It
is, however, an expression of non-binding norms, principles, and practices that influence state
behavior. Certain declarations and resolutions of the UN General Assembly fall under this
category. The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong Special Administrative Region
v. Olalia, 521 SCRA 470 (2007); Mejoff v. Director of Prisons, 90 Phil. 70, Mijares v. Rañada,
455 SCRA 397 (2005), and Shangri-la International Hotel Management, Ltd. v. Developers
Group of Companies, Inc., 486 SCRA 405 (2006).
271
Same; Same; Same; Same; Same; Same; Same; Administrative Law; The provisions of
the World Health Assembly (WHA) Resolutions cannot be considered as part of the law of the
land that can be implemented by executive agencies without the need of a law enacted by the
legislature.—Respondents failed to establish that the provisions of pertinent WHA Resolutions
are customary international law that may be deemed part of the law of the land. Consequently,
legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of
the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.
Administrative Law; Milk Code; Health; Breastfeeding; Breast-milk
Substitutes; Advertisements; National Health Policy (A.O. No. 2005-0014); The primacy of
breastfeeding for children is emphasized as a national health policy but nowhere in A.O. No.
2005-0014 is it declared that as part of such health policy, the advertisement or promotion of
breastmilk substitutes should be absolutely prohibited; The national policy of protection,
promotion and support of breast-feeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes; In view of the enactment of the Milk Code which does not
contain a total ban on the advertising and promotion of breastmilk substitutes, it follows that a
total ban policy could be implemented only pursuant to a law amending the Milk Code passed
by the constitutionally authorized branch of government, the legislature—only the provisions of
the Milk Code, but not those of subsequent World Health Assembly (WHA) Resolutions, can be
validly implemented by the Department of Health (DOH).—Respondents submit that the national
policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23,
2005. Basically, the Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeed-ing, exclusive breastfeeding for
the first six months, extended breast-feeding up to two years and beyond; (2) appropriate
complementary feeding, which is to start at age six months; (3) micronutrient supplementation;
(4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in
exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is
emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared
that as part of such health policy, the advertise-
272
ment or promotion of breastmilk substitutes should be absolutely prohibited. The national
policy of protection, promotion and support of breastfeeding cannot automatically be equated
with a total ban on advertising for breastmilk substitutes. In view of the enactment of the Milk
Code which does not contain a total ban on the advertising and promotion of breastmilk
substitutes, but instead, specifically creates an IAC which will regulate said advertising and
promotion, it follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the constitutionally authorized branch of government,
the legislature. Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
Same; Same; Same; Same; Same; The coverage of the Milk Code is not dependent on
the age of the child but on the kind of product being marketed to the public.—The coverage of
the Milk Code is not dependent on the age of the child but on the kind of product being
marketed to the public. The law treats infant formula, bottle-fed complementary food, and
breastmilk substitute as separate and distinct product categories.
Same; Same; Same; Same; Same; Statutory Construction; The entirety of the Revised
Implementing Rules and Regulations (RIRR), not merely truncated portions thereof, must be
considered and construed together—the particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole; The Revised Implementing Rules and Regulations (RIRR), just like the Milk
Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.—It
is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk. The entirety
of the RIRR, not merely truncated portions thereof, must be considered and construed together.
As held in De Luna v. Pascual, 495 SCRA 42 (2006), “[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the meaning of any of its parts and in order
to produce a harmonious whole.” Section 7 of the RIRR provides that “when medically indicated
and only when
273
necessary, the use of breastmilk substitutes is proper if based on complete and
updated information.” Section 8 of the RIRR also states that information and educational
materials should include information on the proper use of infant formula when the use thereof is
needed. Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk substitutes may be proper.
Same; Same; Same; Same; Same; Advertisements; Police Power; Health is a legitimate
subject matter for regulation by the Department of Health (DOH) (and certain other
administrative agencies) in exercise of police powers delegated to it; Health information,
particularly advertising materials on apparently non-toxic products like breastmilk substitutes
and supplements, is a relatively new area for regulation by the Department of Health (DOH).—
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it.However, health information, particularly
advertising materials on apparently non-toxic products like breast-milk substitutes and
supplements, is a relatively new area for regulation by the DOH.
Same; Same; Same; Same; Same; Same; The Department of Health’s (DOH’s) power
under the Milk Code to control information regarding breastmilk vis-à-vis breastmilk substitutes
is not absolute as the power to control does not encompass the power to absolutely prohibit the
advertising, marketing, and promotion of breastmilk substitutes.—When it comes to information
regarding nutrition of infants and young children, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use of breastmilk substitutes,
supplements and related products; and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit: x x x Further, DOH is authorized by the
Milk Code to control the content of any information on breastmilk vis-à-vis breastmilk
substitutes, supplement and related products, in the following manner: x x x The DOH is also
authorized to control the purpose of the information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code to ensure that the information that
274
would reach pregnant women, mothers of infants, and health professionals and workers
in the health care system is restricted to scientific and factual matters and shall notimply or
create a belief that bottlefeeding is equivalent or superior to breastfeeding. It bears emphasis,
however, that the DOH’s power under the Milk Code to controlinformation regarding
breastmilk vis-à-vis breastmilk substitutes is not absolute as the power to control does not
encompass the power to absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.
Same; Same; Same; Same; Same; Same; Section 26(c) of the Revised Implementing
Rules and Regulations (RIRR) which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and promotion of breastfeeding as
embodied in Section 2 of the Milk Code.—It may be argued that Section 8 of the Milk Code
refers only to information given to health workers regarding breastmilk substitutes, not to
containers and labels thereof. However, such restrictive application of Section 8(b) will result in
the absurd situation in which milk companies and distributors are forbidden to claim to health
workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to
display on the containers and labels of their products the exact opposite message. That
askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to avoid by
mandating that all information regarding breast-milk vis-à-visbreastmilk substitutes
be consistent, at the same time giving the government control over planning, provision, design,
and dissemination of information on infant feeding. Thus, Section 26(c) of the RIRR which
requires containers and labels to state that the product offered is not a substitute for breastmilk,
is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring circumvention of
the protection and promotion of breastfeeding as embodied in Section 2 of the Milk Code.
Same; Same; Same; Same; Same; Same; The requirement under Section 26(f) of the
Revised Implementing Rules and Regulations (RIRR) for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.—The label of a product
contains informationabout said product intended
275
for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and
Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic
microorganisms being present in infant formula and other related products when these are
prepared and used inappropriately. Petitioner’s counsel has admitted during the hearing on
June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology
that allows production of powdered infant formula that eliminates all forms of contamination.
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
Same; Same; Same; Same; Same; Same; The Department of Health (DOH) evidently
arrogated to itself not only the regulatory authority given to the Inter-Agency Committee (IAC)
but also imposed absolute prohibition on advertising, promotion, and marketing.—Section 11 of
the RIRR, to wit: “SECTION 11. Prohibition.—No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise
exaggerate breastmilk substitutes and/or replacements, as well as related products covered
within the scope of this Code,” prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with the RIRR’s declaration of principle
under Section 4(f), to wit: SECTION 4. Declaration of Principles.—x x x x (f) Advertising,
promotions, or sponsorships of infant formula, breastmilk substitutes and other related products
are prohibited. The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on advertising,
promotion, and marketing. Yet, oddly enough, Section 12 of the RIRR reiterated the requirement
of the Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and
promotional materials prior to dissemination.
Same; Same; Same; Same; Same; Same; Sections 11 and 4(f) of the Revised
Implementing Rules and Regulations (RIRR) are clearly violative of the Milk Code.—Sections 11
and 4(f) of the RIRR are clearly violative of the Milk Code. However, although it is the IAC
276
 which is authorized to promulgate rules and regulations for the approval or rejection of
advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code,
said provision must be related to Section 6 thereof which in turn provides that the rules and
regulations must be “pursuant to the applicable standards provided for in this Code.” Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being
repetitious, and for easy reference.
Same; Same; Same; Same; Same; Same; The Department of Health (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 Inter-Agency Committee (IAC) shall screen advertising,
promotional, or other marketing materials.—Section 12(b) of the Milk Code designates the DOH
as the principal implementing agency for the enforcement of the provisions of the Code. In
relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that: SECTION
5. Information and Education.—(a) The government shall ensure that objective and
consistentinformation is provided on infant feeding, for use by families and those involved in
the field of infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
Same; Same; Same; Same; Same; Same; The “total effect” standards set out in Section
13 of the Revised Implementing Rules and Regulations (RIRR) bind the Inter-Agency
Committee (IAC) in formulating its rules and regulations on advertising, promotion, and
marketing.—It is pursuant to such responsibility that the DOH correctly provided for Section 13
in the RIRR which reads as follows: SECTION 13. “Total Effect.”—Promotion of products within
the scope of this Code must be objective and should not equate or make the product appear to
be as good or equal to breastmilk or breastfeeding in the advertising concept. It must not in any
case undermine breast-milk or breastfeeding. The “total effect” should not directly or indirectly
suggest that buying their product would produce better indi-
277
viduals, or resulting in greater love, intelligence, ability, harmony or in any manner bring
better health to the baby or other such exaggerated and unsubstantiated claim. Such standards
bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-à-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.
Same; Same; Same; Same; Same; Same; Correct information as to infant feeding and
nutrition is infused with public interest and welfare.—In Equi-Asia Placement, Inc. vs.
Department of Foreign Affairs, 502 SCRA 295 (2006), the Court held: x x x [T]his Court had, in
the past, accepted as sufficient standards the following: “public interest,” “justice and equity,”
“public convenience and welfare,” and “simplicity, economy and welfare.” In this case, correct
information as to infant feeding and nutrition is infused with public interest and welfare.
Same; Same; Same; Same; Same; Same; Section 22 of the Revised Implementing Rules
and Regulations (RIRR) does not prohibit the giving of information to health professionals on
scientific and factual matters—what it prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities for the promotion, education and
production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children.—Section 22 of the RIRR does not
prohibit the giving of information to health professionals on scientific and factual matters.
What it prohibits is the involvement of the manufacturer and distributor of the products covered
by the Code in activities for the promotion, education and production of Information, Education
and Communication (IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restrictedby the Milk Code.
Same; Same; Same; Same; Same; It is the Department of Health (DOH) which is
principally responsible for the implementa-
278
tion and enforcement of the provisions of said Code—it is entirely up to the Department
of Health (DOH) to decide which entities to call upon or allow to be part of policymaking bodies
on breastfeeding.—Section 4(i) of the RIRR provides that milk companies and their
representatives should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which contravenes
the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be
principally responsible for the implementation and enforcement of the provisions of said
Code. It is entirely up to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR’s prohibition on milk companies’
participation in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.
Same; Same; Same; Same; Same; The Milk Code endows the Department of Health
(DOH) with the power to determine how research or educational assistance may be given by
milk companies or under what conditions health workers may accept the assistance, thus,
Sections 9 and 10 of the Revised Implementing Rules and Regulations (RIRR) imposing
limitations on the kind of research done or extent of assistance given by milk companies are
completely in accord with the Milk Code.—Petitioner is also mistaken in arguing that Section 22
of the RIRR prohibits milk companies from giving reasearch assistance and continuing
education to health professionals. Section 22 of the RIRR does not pertain to research
assistance to or the continuing education ofhealth professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in Section 22 of the
RIRR prohibits milk companies from giving assistance for research or continuing education to
health professionals; hence, petitioner’s argument against this particular provision must be
struck down. It is Sections 9 and 10 of the RIRR which govern research assistance. Said
sections of the RIRR provide that research assistance for health workers and researchers
may be allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers
279
may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on
the kind of research done or extent of assistance given by milk companies are completely in
accord with the Milk Code.
Same; Same; Same; Same; Same; The law does not proscribe the refusal of donations
made by manufacturers and distributors of breastmilk substitutes—the Milk Code leaves it
purely to the discretion of the Department of Health (DOH) whether to request or accept such
donations.—As to the RIRR’s prohibition on donations, said provisions are also consistent with
the Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the approval of
the DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to
the discretion of the DOH whether to request or accept such donations. The DOH then
appropriately exercised its discretion through Section 51 of the RIRR which sets forth its policy
not to request or approve donations from manufacturers and distributors of breastmilk
substitutes. It was within the discretion of the DOH when it provided in Section 52 of the RIRR
that any donation from milk companies not covered by the Code should be coursed through the
IAC which shall determine whether such donation should be accepted or refused. As reasoned
out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH
from refusing donations.
 Same; Same; Administrative Penalties; Since neither the Milk Code nor the Revised
Administrative Code grants the Department of Health (DOH) the authority to fix or impose
administrative fines, then the Department of Health (DOH) cannot provide for such fines in the
Revised Implementing Rules and Regulations (RIRR).—In a more recent case, Perez v. LPG
Refillers Association of the Philippines, Inc., 492 SCRA 638 (2006), the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas
Pambansa(B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts.
The Court found that nothing in the circular contravened the law because the DOE was
expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties. In the
280
present case, neither the Milk Code nor the Revised Administrative Code grants the DOH
the authority to fix or impose administrative fines. Thus, without any express grant of power to
fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the
DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the
RIRR. Said provision is, therefore, null and void.
Same; Same; Same; Non-Delegation of Powers; The express grant of rule-making power
to an administrive agency necessarily includes the power to amend, revise, alter, or repeal the
same; It is a standard provision in administrative rules that prior issuances of administrative
agencies that are inconsistent therewith are declared repealed or modified.—Section 57 of the
RIRR does not provide for the repeal of lawsbut only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH’s rule-making power. An
administrative agency like respondent possesses quasi-legislative or rule-making power or the
power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers. Such express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the same. This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to
implement the provisions of a law, 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.
Same; Same; Regulation of Trade; The framers of the constitution were well aware that
trade must be subjected to some form of regulation for the public good—public interest must be
upheld over business interests.—The framers of the constitution were well aware that trade
must be subjected to some form of regulation for the public good. Public interest must be upheld
over business interests. In Pest Management Association of the Philippines v. Fertilizer and
Pesticide Authority, 516 SCRA 360 (2007), it was held thus: x x x Furthermore, as held
in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority, despite the
fact that “our present Constitution enshrines free enterprise as a policy, it
281
nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare.” There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited
case, the Court declared that “free enterprise does not call for removal of ‘protective
regulations.’ ” x x x It must beclearly explained and proven by competent evidence just
exactly how such protective regulation would result in the restraint of trade.[Emphasis
and italics supplied]
Same; Same; Words and Phrases; Since all the regulatory provisions under the Milk
Code apply equally to both manufacturers and distributors, the Court sees no harm in the
Revised Implementing Rules and Regulations (RIRR) providing for just one term to encompass
both entities—the definition of “milk company” in the Revised Implementing Rules and
Regulations (RIRR) and the definitions of “distributor” and “manufacturer” provided for under the
Milk Code are practically the same.—The definition in the RIRR merely merged together under
the term “milk company” the entities defined separately under the Milk Code as “distributor” and
“manufacturer.” The RIRR also enumerated in Section 5(w) the products manufactured or
distributed by an entity that would qualify it as a “milk company,” whereas in the Milk Code, what
is used is the phrase “products within the scope of this Code.” Those are the only differences
between the definitions given in the Milk Code and the definition as restated 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.
PUNO, C.J., Concurring and Separate Opinion:
Freedom of Expression; Commercial Speech; Breastmilk Substitutes; The advertising
and promotion of breastmilk substitutes properly falls within the ambit of the term commercial
speech—that is,
282
speech that proposes an economic transaction—a separate category of speech which is
not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.—I fully concur with the well-written
and comprehensive ponencia of my esteemed colleague, Ms. Justice Ma. Alicia Austria-
Martinez. I write to elucidate another reason why the absolute ban on the advertising and
promotion of breastmilk substitutes found under Sections 4(f) and 11 of A.O. No. 2006-0012
(RIRR) should be struck down. The advertising and promotion of breastmilk substitutes properly
falls within the ambit of the term commercial speech—that is, speech that proproses an
economic transaction. This is a separate category of speech which is not accorded the same
level of protection as that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.
Same; Same; Same; Four-Part Analysis for Evaluating Validity of Regulations of
Commercial Speech.—Central Hudson provides a four-part analysis for evaluating the validity of
regulations of commercial speech. To begin with, the commercial speech must “concern lawful
activity and not be misleading” if it is to be protected under the First Amendment. Next, the
asserted governmental interest must be substantial. If both of these requirements are met, it
must next be determined whether the state regulation directly advances the governmental
interest asserted, and whether it is not more extensive than is necessary to serve that interest.
Same; Same; Same; The absolute ban on advertising prescribed under Sections 4(f) and
11 of the Revised Implementing Rules and Regulations (RIRR) is unduly restrictive and is more
than necessary to further the avowed governmental interest of promoting the health of infants
and young children.—I proffer the humble view that the absolute ban on advertising prescribed
under Sections 4(f) and 11 of the RIRR is unduly restrictive and is more than necessary to
further the avowed governmental interest of promoting the health of infants and young children.
It ought to be self-evident, for instance, that the dvertisement of such products which are strictly
informative cuts too deep on free speech. The laudable concern of the respondent for the
promotion of the health of infants and young children cannot justify the absolute, overarching
ban.
283
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Felicitas Aquino Arroyo, Ma. Pilar Martinez-Caedo, Sandra Marie Olaso-
Coronel and Grace Veronica C. Reyes for petitioner.
The Solicitor Generalfor respondents.
Maria Shiela M. Bazarfor Arugaan, Inc.
 Bernas Law Offices for respondents-in-intervention and Theresia Hontiveros-Baraquel
and Loreta Ann P. Rosales.
Maria Paz Luna for herself and movant/intervenors Pia Denise Ducay, et al.
Marvic M.V.F. Leonenfor himself and movant/inter-venors Karol Ruiz Austria, et al.
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is
mother’s milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,” Relevant
InternationalAgreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional
and go beyond the law it is supposed to implement.
284
Named as respondents are the Health Secretary, Under-secretaries, 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 sup-
_______________
1
Section 11, Rule 3, 1997 Rules of Civil Procedure which provides:
Section 11. Misjoinder and non-joinder of parties.—Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the actionand on such
terms as are just. x x x (Emphasis supplied)
2 ____________
Article 11. Implementation and monitoring
11.1 Governments should take action to give effect to the principles and aim of this Code, as
appropriate to their social and legislative framework, including the adoption of national
legislation, regulations or other suitable measures. For this purpose, governments should seek,
when necessary, the cooperation of WHO, UNICEF and other agencies of the United Nations
system. National policies and measures, including laws and regulations, which are adopted to
give effect to the principles and aim of this Code should be publicly stated, and should apply on
the same basis to all those involved in the manufacture and marketing of products within the
scope of this Code.
xxxx
285
ported, promoted and protected, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child.
Article 24 of said instrument provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all segments of society, specially parents
and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR. 3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents
from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on
June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5,
2007, to wit:
“The Court hereby sets the following issues:
1. 1.Whether or not petitioner is a real party-in-interest;
2. 2.Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules
and Regulations (RIRR) issued by the Department of Health (DOH) is not
constitutional;
_______________
3
Petition, Rollo, p. 12.
286
1. 2.1.Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2. 2.2.Whether pertinent international agreements1 entered into by the Philippines are
part of the law of the land and may be implemented by the DOH through the RIRR;
If in the affirmative, whether the RIRR is in accord with the international
agreements;
3. 2.3.Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and
4. 2.4.Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
1
(1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef “2002
Global Strategy on Infant and Young Child Feeding;” and (3) various World Health Assembly
(WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner’s standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to
wit:
“The modern view is that an association has standing to complain of injuries to its members.
This view fuses the legal identity of an association with that of its members. An association
has standing to file suit for its workers despite its lack of direct interest if its members
are affected by the action. An organization has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any

_______________
4
G.R. No. 131719, May 25, 2004, 429 SCRA 81.
287
individual, company, entity or association on matters related to the manpower recruitment
industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its
members, because it and its members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its individual members seek
to make more effective the expression of their voices and the redress of their
grievances.”5(Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6where the Court
ruled that an association has the legal personality to represent its members because the results
of the case will affect their vital interests.7
Herein petitioner’s Amended Articles of Incorporation contains a similar provision just like
in Executive Secretary, that the association is formed “to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public.” 8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9 to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by
the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent
the entire industry, would be remiss in its duties if it fails to act
_______________
5 _______________
Id., at pp. 96-97.
6
G.R. No. 135092, May 4, 2006, 489 SCRA 382.
7
Id., at p. 396.
8
Annex “G,” Petitioner’s Memorandum dated July 19, 2007.
9
Annexes “H,” “I,” and “J” of Petitioner’s Memorandum executed by Wyeth Philippines, Inc.,
Bristol Myers Squibb (Phils.), Inc., and Abbott Laboratories, Inc., respectively.
288
on governmental action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members,
should be considered as a real party-in-interest which stands to be benefited or injured by any
judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is that the
RIRR implements not only the Milk Code but also various international instruments 10 regarding
infant and young child nutrition. It is respondents’ position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.
The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The International
Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of
All Forms of Discrimination Against Women, only provide in general terms that steps must be
taken by State Parties to diminish infant and child mortality and inform society of the advantages
of breastfeeding, ensure the health and well-being of families,
_______________
10
a) The UN Convention on the Rights of the Child (CRC); b) the International Code of
Marketing Breastmilk Substitutes (ICMBS); c) the International Covenant on Economic, Social
and Cultural Rights (CSCR); d) the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW); e) the Global Strategy for Infant and Young Child Nutrition (Global
Strategy); and f) various resolutions adopted by the World Health Assembly.
289
and ensure that women are provided with services and nutrition in connection with pregnancy
and lactation. Said instruments do not contain specific provisions regarding the use or marketing
of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformationor incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. 12
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that “[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate.” Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code
11
Joaquin G. Bernas, S.J., Constitutional Structure and Powers of Government (Notes and
Cases) Part I (2005).
12
Id.
13
Joaquin G. Bernas, S.J., An Introduction to Public International Law, 2002 Ed., p. 57.
290
that has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize
at this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to thegeneral public of products within the
scope of the ICMBS. Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if such materials are duly
authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
“SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
(Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15the Court held thus:
“[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as
bindingresult from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the
_______________
14
According to Fr. Bernas, the Austrian Constitution (Art. 9) and the Constitution of the
Federal Republic of Germany (Art. 25) also use the incorporation method.
15
G.R. No. 139325, April 12, 2005, 455 SCRA 397.
291
practice in question is rendered obligatory by the existence of a rule of law requiring
16
it.” (Emphasis supplied)
“Generally accepted principles of international law” refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person’s right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of “generally accepted
principles of law” has also been depicted in this wise:
“Some legal scholars and judges look upon certain “general principles of law” as a primary
source of international law because they have the “character of jus rationale” and are “valid
through all kinds of human societies.”(Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). O’Connell holds that certain priniciples are part of
international law because they are “basic to legal systems generally” and hence part of
the jus gentium. These principles, he believes, are established by a process of reasoning
based on the common identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law principle provides a
just and acceptable solution. x x x”21(Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
“Custom or customary international law means “a general and consistent practice of states
followed by them from a sense of legal
_______________
16
Id., at p. 421.
17
Merlin M. Magallona, Fundamentals of Public International Law, 2005 Ed., p. 526.
18
Id., at p. 525.
19
Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675,
April 19, 2007, 521 SCRA 470.
20
Tañada v. Angara, 338 Phil. 546, 592; 272 SCRA 18 (1997).
21
Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases
and Materials, 2nd Ed., p. 96.
292
obligation [opinio juris].” (Restatement) This statement contains the two basic elements of
custom: thematerial factor, that is, how states behave, and the psychological
or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because they
consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio
juris, or the belief that a certain form of behavior isobligatory, is what makes practice an
international rule. Without it, practice is not law.”22 (Italics and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system. 23
WHA Resolutions have not been embodied in any local legislation. Have they attained the
status of customary law and should they then be deemed incorporated as part of the law of the
land?
The World Health Organization (WHO) is one of the international specialized agencies
allied with the United Nations (UN) by virtue of Article 57,24in relation to Article
_______________
22
Supra note 13, at pp. 10-13.
23
Minucher v. Court of Appeals, 445 Phil. 250, 269; 397 SCRA 244, 259-260 (2003).
24
Article 57. The various specialized agencies, established by intergovernmental
agreement and having wide international responsibilities, as defined in their basic instruments,
in economic, social,
293
6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the
policies of the WHO,26 and has the power to adopt regulations concerning “advertising and
labeling of biological, pharmaceutical and similar products moving in international
commerce,”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 different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with
respect to any matter within
_______________
cultural, educational, health, and related fields, shall be brought into relationship with the
United Nations in accordance with the provisions of Article 63.
Such agencies thus brought into relationship with the United Nations are hereinafter
referred to as specialized agencies.
25
Article 63. The Economic and Social Council may enter into agreements with any of the
agencies referred to in Article 57, defining the terms on which the agency concerned shall be
brought into relationship with the United Nations. Such agreements shall be subject to approval
by the General Assembly.
It may coordinate the activities of the specialized agencies through consultation with and
recommendations to such agencies and through recommendations to the General Assembly
and to the Members of the United Nations.
26
Article 18. The functions of the Health Assembly shall be: (a) to determine the policies
of the Organization x x x. (Emphasis supplied)
27
Article 21. The Health Assembly shall have authority toadopt regulations concerning:
xxx
(e) advertising and labeling of biological, pharmaceutical and similar products
moving in international commerce.(Emphasis supplied)
28
Article 23. The Health Assembly shall have authority tomake recommendations to
Members with respect to any matter within the competence of the Organization. (Emphasis
supplied)
294
the competence of the Organization. A two-thirds vote of the Health Assembly shall be required
for the adoption of such conventions or agreements, which shall come into force for each
Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will,within eighteen months after the adoption
by the Health Assembly of a convention or agreement, take action relative to the acceptance
of such convention or agreement. Each Member shall notify the Director-General of the
action taken, and if it does not accept such convention or agreement within the time limit, it will

furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member
agrees to make an annual report to the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures designed to
prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes
of death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce; (e) advertising and
labeling of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly
except for such Members as may notify the Director-General of rejectionor reservations
within the period stated in the notice.(Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into
force for members, in the same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members
with respect to any matter within the competence of the Organization. (Emphasis supplied)
295
The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they “carry moral and political weight, as they
constitute the judgment on a health issue of the collective membership of the highest
international body in the field of health.”29 Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
“The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution.” (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
“In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously recommended to
the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the
code in the form of a recommendation rather than a regulation. x x x” (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the
WHO Constitution, to wit:
“Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions, agreements
and regulations.”
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally
_______________
29
See David Fidler, Developments Involving SARS, International Law, and Infectious
Disease Control at the Fifty-Sixth Meeting of the World Health Assembly, June 2003, ASIL.
296
non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
continued
_______________
30
In Resolution No. 34.22 (May 21, 1981), the WHA, acting under Article 23 of the WHO
Constitution, adopted the ICBMS.
1. (a)In Resolution No. 35.26(May 1982), the WHA urged member states to implement
the ICBMS as a “minimum requirement.”
2. (b)In Resolution No. 39.28(May 16, 1986), the WHA requested the WHO Director
General to direct the attention of member states to the fact that any food or drink
given before complementary feeding is nutritionally required may interfere with the
initiation or maintenance of breastfeeding and therefore should neither be promoted
nor encouraged for us by infants during this period.
3. (c)In Resolution No. 43.3(May 14, 1990), the WHA urged member states to protect
and promote breastfeeding as an essential component of nutrition policies so as to
enable infants to be exclusively breastfed during the first four to six months of life.
4. (d)In Resolution No. 45.34(May 14, 1992), the WHA urged member states to
implement the targets of the Innocenti Declaration specifically, to give effect to the
ICMBS.
5. (e)In Resolution No. 46.7(May 10, 1993), the WHA urged member states to strive to
eliminate under-nutrition, malnutrition and nutritional deficiency among children.
6. (f)In Resolution No. 47.5(May 9, 1994), the WHA urged member states to ensure
that there are no donations of supplies of breastmilk substitutes and other products
covered by the ICMBS in any part of the health care system.
7. (g)In Resolution No. 49.15(May 25, 1996), the WHA urged member states to ensure
that complementary foods are not marketed for or used in ways that undermine
exclusive and sustained breastfeeding.
297
breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute “soft law” or non-binding norms,
principles and practices that influence state behavior.31
“Soft law” does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. 32 It is, however,
_______________
1. (h)In Resolution No. 54.2(May 2002), the WHA, noting that “despite the fact that the
International Code of Marketing of Breastmilk Substitutes and relevant subsequent
World Health Assembly resolutions state that there should be no advertising or
other forms of promotion of products within its scope, new modern communication
methods including electronic means, are currently increasingly being used to
promote such products; and conscious of the need for the Codex Alimentarius
Commission to take the International Code and subsequent relevant Health
Assembly resolutions into consideration in dealing with health claims in the
development of food standards and guidelines x x x,” urged member states to
develop new approaches to protect, promote and support exclusive breastfeeding
for six months as a global public health recommendation.
2. (i)In Resolution No. 55.25(May 15, 2002), the WHA requested the Codex
Alimentarius Commission to ensure that labelling of processed foods for infants and
young children be consistent with the WHO policy under the ICBMS.
3. (j)In Resolution No. 58.32(May 25, 2005), the WHA urged member states to continue
to protect and promote exclusive breastfeeding for six months.
4. (k)In Resolution No. 59.21(May 27, 2006), the WHA reiterated its support for the
Gobal strategy for Infant and Young Child Feeding.
31
David Fidler, supra note 29.
32
Article 38. 1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it,
 298
an expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this
category.34The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong Special Administrative Region
v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-La International
Hotel Management, Ltd. v. Developers Group of Companies, Inc. 38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the
UN with the mandate to promote and protect intellectual property worldwide, has resorted to soft
law as a rapid means of norm creation, in order “to reflect and respond to the changing needs
and demands of its constituents.”39 Other international organizations which have resorted to soft
law include the International
_______________
shall apply: a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states; b) international custom, as evidence of a general
practice accepted as law; c) the general principles of law recognized by civilized nations; d)
subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various na-tions, as subsidiary means for the determination of rules of
law.
33
Supra note 29.
34
Louis Henkin, et al., International Law, Cases and Materials, 2nd Ed., supra note 21, at
pp. 114-136.
35
Supra note 19.
36
90 Phil. 70 (1951).
37
Supra note 15.
38
G.R. No. 159938, March 31, 2006, 486 SCRA 405.
39
Edward Kwakwa, Some Comments on Rulemaking at the World Intellectual Property
Organization, www.law.duke.edu/shell/cite; September 13, 2007, 12:33, citing the 1999 WIPO
Resolution Concerning Provisions on the Protection of Well-Known Marks, 2000 WIPO
Recommendation Concerning Trademark Licenses, and 2001 WIPO Recommendation
Concerning Provisions on the Protection of Marks and other Industrial Property Rights in Signs
on the Internet.
299
Labor Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.
“Although the IHR Resolution does not create new international law binding on WHO
member states, it provides anexcellent example of the power of “soft law” in
international relations. International lawyers typically distinguish bindingrules of
international law—”hard law”—from non-binding norms, principles, and practices that
influence state behavior—”soft law.” WHO has during its existence generated manysoft
law norms, creating a “soft law regime” in international governance for public health.
The “soft law” SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These resolutions
clearly define WHO member states’ normative duty to cooperate fully with other countries and
with WHO in connection with infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic,
the duty is powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating in, and enhancing, international cooperation on infectious disease
controls is in a country’s self-interest x x x if this warning is heeded, the “soft law” in the SARS
and IHR Resolution could inform the development of general and consistent state practice on
infectious disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.”41
In the Philippines, the executive department implemented certain measures recommended by
WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
201 on April 26, 2003 and E.O. No. 280 on Febru-
_______________
40
Id.
41
Supra note 29.
300
ary 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban importation of
poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state
to implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it
must be established that such rule is being followed by states because they consider it
obligatory to comply with such rules (opinio juris). Respondents have not presented any
evidence to prove that the WHA Resolutions, although signed by most of the member states,
were in fact enforced or practiced by at least a majority of the member states; neither have
respondents proven that any compliance by member states with said WHA Resolutions was
obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions
into domestic law. The provisions of the WHA Resolutions cannot be considered as part of
the law of the land that can be implemented by executive agencies without the need of a
law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the
WHA Resolutions by virtue of its powers and functions under the Revised Administrative Code
even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the
DOH shall define the national health policy and implement a national health plan within the
framework of the government’s general poli-
301
cies and plans, and issue orders and regulations concerning the implementation of
established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as
part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied
in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in
A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot
automatically be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC
which will regulate said advertising and promotion, it follows that a total ban policy could be
implemented only pursuant to a lawamending the Milk Code passed by the constitutionally
authorized branch of government, the legislature.
 Thus, only the provisions of the Milk Code, but notthose of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
302
Third, the Court will now determine whether the provisions of the RIRR are in accordance with
those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:
1. 1.The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to “young children” or those from ages two years old and
beyond:
1. 2.The Milk Code recognizes that infant formula may be a proper and possible
substitute for breastmilk in certain instances; but the RIRR provides “exclusive
breast-
303
1. feeding for infants from 0-6 months” and declares that “there is no substitute nor
replacement for breastmilk:”
1. 3.The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24 months old or beyond, and
forbids the use of health and nutritional claims. Section 13 of the RIRR, which
provides for a “total effect” in the promotion of products within the scope of the
Code, is vague:
304
305
306
1. 4.The RIRR imposes additional labeling requirements not found in the Milk Code:
307
1. 5.The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
1. 6.The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids
the same.
308
309
1. 7.The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
1. 8.The RIRR provides for administrative sanctions not imposed by the Milk Code.
310
311
1. 9.The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code’s coverage is limited only to children
0-12 months old. Section 3 of the Milk Code states:
312
“SECTION 3. Scope of the Code.—The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other milk
products, foods and beverages, including bottle-fed complementary foods, when marketed or
otherwise represented to be suitable, with or without modification, for use as a partial or total
replacement of breastmilk; feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.”
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind
of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as “a breastmilk substitute x x x to
satisfy the normal nutritional requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics”; while under Section 4(b), bottle-fed
complementary food refers to “any food, whether manufactured or locally prepared, suitable as
a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
nutritional requirements of the infant.” An infant under Section 4(e) is a person falling within the
age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as
“any food being marketed or otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose.” This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12 months. In other words, breastmilk
substitutes may also be intended for young children more than 12 months of age. Therefore, by
regulating breastmilk substitutes, the Milk
313
Code also intends to protect and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as
provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months. There is, therefore, nothing
objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 “[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the meaning of any of its parts and in order
to produce a harmonious whole.”
Section 7 of the RIRR provides that “when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and updated
infor-mation.” Section 8 of the RIRR also states that information
_______________
42
Section 2. Purpose.—These Revised Rules and Regulations are hereby promulgated to
ensure the provision of safe and adequate nutrition for infants and young children by the
promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk
substitutes, breastmilk supplements and related products when these are medically indicated
and only when necessary, on the basis of adequate information and through appropriate
marketing and distribution. (Italics supplied)
 43
Section 5(ff). “Young Child” means a person from the age of more than twelve (12)
months up to the age of three (3) years (36 months). (Italics supplied)
44
G.R. No. 144218, July 14, 2006, 495 SCRA 42, 55.
314
and educational materials should include information on the proper use of infant formula when
the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the
use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code, 47and
as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it.48However, health
information, particularly advertising materials on apparently non-toxic products like breastmilk
substitutes and supplements, is a relatively new area for regulation by the DOH. 49
_______________
45
See pp. 19-21.
46
See p. 21.
47
Executive Order No. 292, made effective on November 23, 1989 by Proclamation No.
495.
48
Jacobson v. Massachusetts, 197 US 11 (1905); Beltran v. Secretary of Health, G.R. No.
133640, November 25, 2005, 476 SCRA 168, 196; St. Lukes’s Medical Center Employees
Association-AFW v. National Labor Relations Commission, G.R. No. 162053, March 7,
2007, 517 SCRA 677; Tablarin v. Gutierrez, G.R. No. L-78164, July 31, 1987, 152 SCRA 730,
741; Pollution Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11, 1991, 195
SCRA 112, 123-124; Rivera v. Campbell, 34 Phil. 348, 353-354 (1916); Lorenzo v. Director of
Health, 50 Phil. 595, 597 (1927).
49
As early as People v. Pomar, 46 Phil. 440, 445 (1924), we already noted that “advancing
civilization is bringing within the
315
As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health information
was already within the ambit of the regulatory powers of the predecessor of DOH. 51Section 938
thereof charged it with the duty to protect the health of the people, and vested it with such
powers as “(g) the dissemination of hygienic information among the people and especially the
inculcation of knowledge as to the proper care of infants and the methods of preventing
and combating dangerous communicable diseases.”
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the
state policy pronounced under Section 15, Article II of the 1987 Constitution, which is “to protect
and promote the right to health of the people and instill health consciousness among
them.”52 To that end, it was granted under Section 3 of the Administrative Code the power to
“(6) propagate health information and educate the population on important health, medical and
environmental matters which have health implications.”53
When it comes to information regarding nutrition of infants and young children, however,
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH)
the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breast-milk substitutes, supplements and related products; and the
_______________
scope of police power of the state today things which were not thought of as being
with in such power yesterday. The development of civilization, the rapidly increasing
population, the growth of public opinion, with [an increasing] desire on the part of the masses
and of the government to look after and care for the interests of the individuals of the state,
have brought within the police power of the state many questions for regulation which formerly
were not so considered.”
50
Act No. 2711, approved on March 10, 1917.
51
Known then as Public Health Service.
52
Section 1, Chapter I, Title IX, Executive Order No. 292.
53
Id., at Section 3.
316
power to control such information. These are expressly provided for in Sections 12 and 5(a), to
wit:
SECTION 12. Implementation and Monitoring—
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall have
the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation
of this Code and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to
the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education—
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to controlthe content of any information on
breastmilk vis-à-vis breastmilk substitutes, supplement and related products, in the following
manner:
“SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of breastfeeding;
(3) the negative effect on breast-feeding of introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or
317
home-prepared. When such materials contain information about the use of infant formula,
they shall include the social and financial implications of its use; the health hazards
ofinappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infantformula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use ofbreastmilk
substitutes.
SECTION 8. Health Workers.—
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that bot-tlefeeding is equivalent or
superior to breastfeeding. It shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label.—
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term “humanized,” “maternalized” or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure
_______________
54
SECTION 6. The General Public and Mothers.—
1. (a)No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published,
distributed, exhibited and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein pursuant to the applicable
standards provided for in this Code.
2. (b)Manufacturers and distributors shall not be permitted to give, directly or indirectly,
samples and supplies of products within the scope of this Code or gifts of any sort to
318
that the information that would reach pregnant women, mothers of infants, and health
professionals and workers in
_______________
1. any member of the general public, including members of their families, to hospitals
and other health institutions, as well as to personnel within the health care system,
save as otherwise provided in this Code.
2. (c)There shall be no point-of-sale advertising, giving of samples or any other
promotion devices to induce sales directly to the consumers at the retail level, such
as special displays, discount coupons, premiums, special sales, bonus and tie-in
sales for the products within the scope of this Code. This provision shall not restrict
the establishment of pricing policies and practices intended to provide products at
lower prices on a long-term basis.
3. (d)Manufactures and distributors shall not distribute to pregnant women or mothers of
infants any gifts or articles or utensils which may promote the use of breastmilk
substitutes or bottlefeeding, nor shall any other groups, institutions or individuals
distribute such gifts, utensils or products to the general public and mothers.
4. (e)Marketing personnel shall be prohibited from advertising or promoting in any other
manner the products covered by this Code, either directly or indirectly, to pregnant
women or with mother of infants, except as otherwise provided by this Code.
5. (f)Nothing herein contained shall prevent donations from manufacturers and
distributors or products within the scope of this Code upon request by or with the
approval of the Ministry of Health.
SECTION 7. Health Care System.—
1. (a)The Ministry of Health shall take appropriate measures to encourage and promote
breastfeeding. It shall provide objective and consistent information, training and
advice to health workers on infant nutrition, and on their obligations under this Code.
2. (b)No facility of the health care system shall be used for the purpose of promoting
infant formula or other products within the scope of this Code. This Code does not,
however,
319
the health care system is restricted to scientific and factual matters and shall not imply or create
a belief that bottlefeed-ing is equivalent or superior to breastfeeding.
_______________
1. preclude the dissemination of information to health professionals as provided in
Section 8(b).
2. (c)Facilities of the health care system shall not be used for the display of products
within the scope of this Code, or for placards or posters concerning such products.
3. (d)The use by the health care system of “professional service” representatives,
“mothercraft nurses” or similar personnel, provided or paid for by manufacturers or
distributors, shall not be permitted.
4. (e)In health education classes for mothers and the general public, health workers and
community workers shall emphasize the hazards and risks of the improper use of
breast-milk substitutes particularly infant formula. Feeding with infant formula shall
be demonstrated only to mothers who may not be able to breastfeed for medical or
other legitimate reasons.
SECTION 8. Health Workers.—
1. (a)Health workers shall encourage and promote breast-feeding and shall make
themselves familiar with objectives and consistent information on maternal and
infant nutrition, and with their responsibilities under this Code.
2. (b)Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
3. (c)No financial or material inducements to promote products within the scope of this
Code shall be offered by manufacturers or distributors to health workers or
members of their families, nor shall these be accepted by the health workers or
members of their families, except as otherwise provided in Section 8(e).
4. (d)Samples of infant formula or other products within the scope of this Code, or of
equipment or utensils for their
320
It bears emphasis, however, that the DOH’s power under the Milk Code to controlinformation
regarding breastmilk vis-à-visbreastmilk substitutes isnot absolute as the power to control does
not encompass the power to absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control
over information given to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
“SECTION 2. Aim of the Code.—The aim of the Code is to contribute to the provision of safe
and adequate nutrition for infants by the protection and promotion of breastfeeding and by
ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are
necessary, on the basis of adequate information and through appropriate marketing and
distribution.”
_______________
1. preparation or use, shall not be provided to health workers except when necessary for
the purpose of professional evaluation or research in accordance with the rules and
regulations promulgated by the Ministry of Health. No health workers shall give
samples of infant formula to pregnant women and mothers of infants or members of
their families.
2. (e)Manufacturers and distributors of products within the scope of this Code may assist
in the research, scholarships and continuing education, of health professionals, in
accordance with the rules and regulations promulgated by the Ministry of Health.

SECTION 9. Persons employed by Manufacturers and Distributors.—Personnel employed
in marketing products within the scope of this Code shall not, as part of their job responsibilities,
perform educational functions in relation to pregnant women or mothers of infants.
321
1. b)Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to
information concerning their use;
2. c)Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
3. d)Section 5(b) which provides that written, audio or visual informational and
educational materials shall not use any picture or text which may idealize the use of
breastmilk substitutes and should include information on the health hazards of
unnecessary or improper use of said product;
4. 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;
5. f)Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific
matters and shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding; and
6. g)Section 10 which provides that containers or labels should not contain information
that would discourage breast-feeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.
Sections 1355 on “total effect” and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be
_______________
55
See p. 20.
56
See p. 21.
322
prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition
claims for products within the scope of the Milk Code, such as claims of increased emotional
and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:
“SECTION 8. Health workers—
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that bottlefeed-ing
is equivalent or superiorto breastfeeding. It shall also include the information specified in
Section 5.”58(Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms “humanized,”
“maternalized,” or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a
belief that there is any milk product equivalent to breastmilk or which is humanized or
maternalized, as such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breast-
_______________
57
SECTION 16. All health and nutrition claims for products within the scope of the Code are
absolutely prohibited. For this purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child and other like phrases shall not be
allowed.
58
See p. 30.
59
SECTION 10. Containers/Label.—
xxxx
(d) The term “humanized,” “maternalized” or similar terms shall not be used.
323
milk substitutes, not to containers and labels thereof. However, such restrictive application of
Section 8(b) will result in the absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are substitutes or equivalents of
breastmilk, and yet be allowed to display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a)
thereof seeks to avoid by mandating that all information regarding breast-milk vis-à-
visbreastmilk substitutes be consistent, at the same time giving the government control over
planning, provision, design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing Section
8(b) of the Milk Code and deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements
Section 5(b) of the Milk Code which reads:
_______________
60
SECTION 2. Aim of the Code.—The aim of the Code is to contribute to the provision of
safe and adequate nutrition for infants by the protection and promotion of breastfeeding and by
ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are
necessary, on the basis of adequate information and through appropriate marketing and
distribution.
61
SECTION 26. Content.—Each container/label shall contain such message, in both
Filipino and English languages, and which message cannot be readily separated therefrom,
relative the follow-ing points:
xxxx
(f) The health hazards of unnecessary or improper use of infant formula and other related
products including information that
324
“SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x x x (5) where needed, the proper use of
infant formula, whether manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or feeding methods; and,
in particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or text which may
idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof.
The buyers of breast-milk substitutes are mothers of infants, and Section 26 of the RIRR merely
adds a fair warning about the likelihood of pathogenic microorganisms being present in infant
formula and other related products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is
prone to contaminations and there is as yet no technology that allows production of powdered
infant formula that eliminates all forms of contamination. 62
 Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
_______________
powdered infant formula may contain pathogenic microorganisms and must be prepared
and used appropriately.
62
TSN of the hearing of June 19, 2007, pp. 114-120.
325
The authority of DOH to control information regarding breastmilk vis-à-vis breastmilk substitutes
and supplements and related products cannot be questioned. It is its intervention into the area
of advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.—
(a) No advertising, promotion or other marketing materials, whether written, audio or visual,
for products within the scope of this Code shall be printed, published, distributed, exhibited and
broadcast unless such materials are duly authorized and approved by an inter-agency
committee created herein pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring.—
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:
The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
1. (1)To review and examine all advertising, promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
2. (2)To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
326
1. (3)To prescribe the internal and operational procedure for the exercise of its powers
and functions as well as the performance of its duties and responsibilities; and
2. (4)To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
“SECTION 11. Prohibition.—No advertising, promotions, sponsorships, or marketing materials
and activities for breastmilk substitutes intended for infants and young children up to twenty-four
(24) months, shall be allowed, because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk
substitutes and/or replacements, as well as related products covered within the scope of this
Code.”
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
“SECTION 4. Declaration of Principles.—
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
other related products are prohibited.”
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and
marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral argu-
327
ments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz.:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section 11
while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or
marketing materials and activities for breast milk substitutes intended for infants and young
children up to 24 months shall be allowed because this is the standard they tend to convey or
give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and evaluate
all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision
on the InterAgency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the AO
2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules
328
and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the InterAgency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don’t you think that the Department of Health overstepped its rule making authority when it
totally banned advertising and promotion under Section 11 prescribed the total effect rule as
well as the content of materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the
InterAgency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of
breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk
substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It’s not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can
evaluate some advertising and promotional materials, subject to the standards that we have
stated earlier, which are—they should not undermine breastfeeding, Your Honor.
xxxx
329
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency
Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there’s no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the InterAgency Committee can
allow if the advertising and promotions will not undermine breastmilk and breastfeed-ing, Your
Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for
the approval or rejection of advertising, promotional, or other marketing materials under Section
12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn
provides that the rules and regulations must be “pursuant to the applicable standards provided
for in this Code.” Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which,
at the risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education.—
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended
_______________
63
TSN of June 19, 2007 hearing, pp. 193-194, 198, 231, 237-240, 295-300.
330
to reach pregnant women and mothers of infants, shall include clear information on all the
following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on breast-feeding of
introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods
of feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.—
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters and
such information shall not imply or create a belief that bottle feeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label.—
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
1. (i) the words “Important Notice” or their equivalent;
2. (ii)a statement of the superiority of breastfeeding;
3. (iii)a statement that the product shall be used only on the advice of a health worker as
to the need for its use and the proper methods of use; and
331
1. (iv)instructions for appropriate preparation, and a warning against the health hazards
of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for
the enforcement of the provisions of the Code. In relation to such responsibility of the DOH,
Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education.—
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
“SECTION 13. “Total Effect.”—Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The “total effect” should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love, intelligence,
ability, harmony or in any manner bring better health to the baby or other such exaggerated and
unsubstantiated claim.”
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion,
and marketing. Through that single provision, the DOH exercises control over the information
content of advertising, promotional and marketing materials on breastmilk vis-à-vis breastmilk
substi-
332
tutes, supplements and other related products. It also sets a viable standard against which the
IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
“x x x [T]his Court had, in the past, accepted as sufficient standards the following: “public
interest,” “justice and equity,” “public convenience and welfare,” and “simplicity, economy and
welfare.”65
In this case, correct information as to infant feeding and nutrition is infused with public interest
and welfare.
4. With regard to activities for dissemination of information to health professionals, the
Court also finds that there is no inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66of the Milk Code, in relation to Section 8(b)67 of the same Code, allows
dissemination of information to health professionals but such information is restricted to
scientific and factual matters.
Contrary to petitioner’s claim, Section 22 of the RIRR does not prohibit the giving of
information to health profes-
_______________
64
G.R. No. 152214, September 19, 2006, 502 SCRA 295.
65
Id., at p. 314.
66
SECTION 7. Health Care System.—
xxxx
(b) No facility of the health care system shall be used for the purpose of promoting infant
formula or other products within the scope of this Code. This Code does not, however, preclude
the dissemination of information to health professionals as provided in Section 8(b).
67
SECTION 8. Health Workers.—
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters and
such information shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
333
sionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication (IEC) materials
regarding breastfeeding that are intended for women and children. Said provision cannot be
construed to encompass even the dissemination of information to health professionals, as
restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers
and distributors to extend assistance in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also
assails Section 4(i)69 of the RIRR prohibiting milk manufacturers’ and distributors’ participation in
any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not
form part of any policymaking body or entity in relation to the advancement of breast-feeding.
The Court finds nothing in said provisions which contravenes the Milk Code. Note that under
Section 12(b) of the Milk Code, it is the DOH which shall be principally
_______________
68
SECTION 8. Health Workers.—
xxxx
(e) Manufacturers and distributors of products within the scope of this Code may assist in
the research, scholarships and continuing education, of health professionals, in accordance with
the rules and regulations promulgated by the Ministry of Health.
69
SECTION 4. Declaration of Principles.—The following are the underlying principles from
which the revised rules and regulations are premised upon:
xxxx
(i) Milk companies, and their representatives, should not form part of any policymaking body
or entity in relation to the advancement of breastfeeding.
334
responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking
bodies on breastfeeding. Therefore, the RIRR’s prohibition on milk companies’ participation in
any policymaking body in relation to the advancement of breastfeeding is in accord with the Milk
Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies
from giving reasearch assistance and continuing education to health professionals. Section
2270of the RIRR does not pertain to research assistance to or the continuing education
ofhealth professionals; rather, it deals with breastfeeding promotion and education for
women and children. Nothing in Section 22 of the RIRR prohibits milk companies from giving
assistance for research or continuing education to health professionals; hence, petitioner’s
argument against this particular provision must be struck down.
It is Sections 971 and 1072of the RIRR which govern research assistance. Said sections of
the RIRR provide that
_______________
70
SECTION 22. No manufacturer, distributor, or representatives of products covered by the
Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion,
education and production of Information, Education and Communication (IEC) materials on
breastfeeding, holding of or participating as speakers in classes or seminars for women and
children activities and to avoid the use of these venues to market their brands or company
names.
71
SECTION 9. Research, Ethics Committee, Purpose.—The DOH shall ensure that
research conducted for public policy purposes, relating to infant and young child feeding should,
at all times, be free form any commercial influence/bias; accordingly, the health worker or
researcher involved in such must disclose any actual or potential conflict of interest with the
com-pany/person funding the research. In any event, such research and its findings shall be
subjected to independent peer review. x x x.
72
SECTION 10. Public Disclosure.—For transparency purposes, a disclosure and/or
disclaimer of the sponsoring company should be done by the company itself, health worker,
researcher involved through verbal declaration during the public presentation of the research
and in print upon publication.
335
research assistance for health workers and researchers may be allowed upon approval
of an ethics committee, and with certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations
on the kind of research done or extent of assistance given by milk companies are completely in
accord with the Milk Code.
 Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes mayassist in researches, scholarships
and the continuing education, of health professionals in accordance with the rules and
regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR’s prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such donations. The
DOH then appropriately exercised
_______________
73
SECTION 32. Primary Responsibility of Health Workers.—It is the primary responsibility
of the health workers to promote, protect and support breastfeeding and appropriate infant and
young child feeding. Part of this responsibility is to continuously update their knowledge and
skills on breastfeeding. No assistance, support, logistics or training from milk companies shall
be permitted.
74
Supra note 68.
336
its discretion through Section 5175 of the RIRR which sets forth its policy not to request or
approve donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned out
by respondents, the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH
from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not
found in the Milk Code, the Court upholds petitioner’s objection thereto.
Respondent’s reliance on Civil Aeronautics Board v. Phil-ippine Air Lines, Inc. 76is
misplaced. The glaring difference in said case and the present case before the Court is that, in
the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted
by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil
Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order
or decision of the CAA and to determine whether to impose, remit, mitigate, increase or
compromise such fine and civil penalties. Thus, the Court upheld the CAB’s Resolution
imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the
Court upheld the Department of
_______________
75
SECTION 51. Donations Within the Scope of This Code.—Donations of products,
materials, defined and covered under the Milk Code and these implementing rules and
regulations, shall be strictly prohibited.
76
159-A Phil. 142; 63 SCRA 524(1975).
77
G.R. No. 159149, June 26, 2006, 492 SCRA 638.
337
Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg.33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in
the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33
and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the
DOH the authority to fix or impose administrative fines. Thus, without any express grant of
power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this
regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section
46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b)
(3) of the Milk Code authorizes the DOH to “cause the prosecution of the violators of this Code
and other pertinent laws on products covered by this Code.” Section 13 of the Milk Code
provides for the penalties to be imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:
“SECTION 13. Sanctions.—
1. (a)Any person who violates the provisions of this Code or the rules and regulations
issued pursuant to this Codeshall, upon conviction, be punished by a penalty of
two (2) months to one (1) year imprisonment or a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00)
or both. Should the offense be committed by a juridical person, the chairman of the
Board of Directors, the president, general manager, or the partners and/or the
persons directly responsible therefor, shall be penalized.
2. (b)Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of
their profession or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked in the event of
repeated violations of this Code, or of the rules and regulations issued pursuant to
this Code. (Emphasis supplied)
338
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
Section 57 reads:
“SECTION 57. Repealing Clause.—All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby repealed
or modified accordingly.”
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and
rules and regulations. Thus, said provision is valid as it is within the DOH’s rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power
or the power to make rules and regulations which results in delegated legislation that is within
the confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers.78 Such express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the same. 79This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to
implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it
is a standard provision in administrative rules that prior issu-ances of administrative agencies
that are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
_______________
78
Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145,
155-156; 408 SCRA 678, 686 (2003).
79
Yazaki Torres Manufacturing, Inc. v. Court of Appeals, G.R. No. 130584, June 27,
2006, 493 SCRA 86, 97.
80
Supra note 78, at p. 156; pp. 686-687.
339
Lastly, petitioner makes a “catch-all” allegation that:
“x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary
and oppressive, and is offensive to the due process clause of the Constitution, insofar as
the same is in restraint of tradeand because a provision therein is inadequate to provide the
public with a comprehensible basis to determine whether or not they have committed a
violation.”81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,8632,87
_______________
81
Petitioner’s Memorandum.
82
SECTION 4. Declaration of Principles.—The following are the underlying principles from
which the revised rules and regulations are premised upon:
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and
other related products are prohibited.
83
SECTION 4. Declaration of Principles.—x x x (i) Milk companies, and their
representatives, should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding.
84
SECTION 5. x x x x (w) “Milk Company” shall refer to the owner, manufacturer,
distributor, of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute
or replacement, or by any other description of such nature, including their representatives who
promote or otherwise advance their commercial interests in marketing those products; x x x.
85
SECTION 11. Prohibition.—No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children up to
twenty-four (24) months, shall be allowed, because they tend to convey or give subliminal
messages or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products covered within the
scope of this Code.
86
Supra note 70.
87
Supra note 73.
340
46,88 and 5289 as the provisions that suppress the trade of milk and, thus, violate the due
process clause of the Constitution.
_______________
88
SECTION 46. Administrative Sanctions.—The following administrative sanctions shall be
imposed upon any person, juridical or natural, found to have violated the provisions of the Code
and its implementing Rules and Regulations:
1. a)1st violation—Warning;
2. b)2nd violation—Administrative fine of a minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the
violation, including the recall of the offending product;
3. (c)3rd violation—Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and
extent of the violation, and in addition thereto, the recall of the offending product,
and suspension of the Certificate of Product Registration (CPR);
4. (d)4th violation—Administrative Fine of a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the
gravity and extent of the violation; and in addition thereto, the recall of the product,
revocation of the CPR, suspension of the License to Operate (LTO) for one year;
5. (e)5th and succeeding repeated—Administrative Fine of One Million (P1,000,000.00)
Pesos, the recall of the offending product, cancellation of the CPR, revocation of the
License to Operate (LTO) of the company concerned, including the blacklisting of
the company to be furnished the Department of Budget and Management (DBM)
and the Department of Trade and Industry (DTI);
6. (f)An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day
shall be made for every day the violation continues after having received the order
from the IAC or other such appropriate body, notifying and penalizing the company
for the infraction. For purposes of determining whether or not there is “re-peated”
violation, each product violation belonging or owned by a company, including those
of their subsidiaries, are deemed to be violations of the concerned milk company
and shall not be based on the specific violating product alone.
89
SECTION 52. Other Donations By Milk Companies Not Covered by this Code.—
Donations of products, equipments, and the like, not otherwise falling within the scope of this
Code or these
341
The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests. 90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held
thus:
“x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority,despite the fact that “our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare.” There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited
case, the Court declared that “free enterprise does not call for removal of ‘protective
regulations.’ ” x x x It must be clearly explained and proven by competent evidence just
exactly how such protective regulation would result in the restraint of trade.” [Emphasis
and italics supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in
any policymaking body (Section 4[i]), classes and seminars for women and children (Section
22); the giving of assistance, support and logistics or training (Section 32); and the giving of
donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes.
Petitioner has not established that the proscribed activities are indispensable to the trade of
breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the
RIRR are unreasonable and oppressive for being in restraint of trade.
_______________
Rules, given by milk companies and their agents, representatives, whether in kind or in
cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine
whether such donation be accepted or otherwise.
90
Eastern Assurance & Surety Corporation v. Land Transportation Franchising and
Regulatory Board, 459 Phil. 395, 399; 413 SCRA 75, 85 (2003).
91
G.R. No. 156041, February 21, 2007, 516 SCRA 360.
342
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term “milk company,” to wit:
“SECTION 5. x x x. (w) “Milk Company” shall refer to the owner, manufacturer, distributor of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives who
promote or otherwise advance their commercial interests in marketing those products”;
On the other hand, Section 4 of the Milk Code provides:
(d) “Distributor” means a person, corporation or any other entity in the public or private sector
engaged in the business (whether directly or indirectly) of marketing at the wholesale or retail
level a product within the scope of this Code. A “primary distributor” is a manufacturer’s sales
agent, representative, national distributor or broker.
xxxx
 (j) “Manufacturer” means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of manufacturing a products within the scope of this
Code.”

Notably, the definition in the RIRR merely merged together under the term “milk company” the
entities defined separately under the Milk Code as “distributor” and “manufacturer.” The RIRR
also enumerated in Section 5(w) the products manufactured or distributed by an entity that
would qualify it as a “milk company,” whereas in the Milk Code, what is used is the phrase
“products within the scope of this Code.” Those are the only differences between the definitions
given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers
and distributors, the Court sees no harm in the RIRR providing for just one term to
343
encompass both entities. The definition of “milk company” in the RIRR and the definitions of
“distributor” and “manufacturer” provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of “milk company” provided in the RIRR would
bring about any change in the treatment or regulation of “distributors” and “manufacturers” of
breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance
with the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest
of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
Puno (C.J.), Quisumbing, Sandoval-Gutierrez, Carpio, Corona, Carpio-
Morales, Tinga, Chico-Nazario, Garcia,Velasco, Jr. and Reyes, JJ., concur.
Ynares-Santiago and Azcuna, JJ., On Official Leave.
Nachura, J., No Part.

344
 G.R. No. 159618. February 1, 2011.*
BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA, petitioner, vs.ALBERTO ROMULO, in his capacity as Executive Secretary, and
BLAS F. OPLE, in his capacity as Secretary of Foreign Affairs, respondents.
Actions; Procedural Rules and Technicalities; Locus Standi; Locus standi is a right of
appearance in a court of justice on a given question.—Locus standi is “a right of appearance in
a court of justice on a given question.” Specifically, it is “a party’s personal and substantial
interest in a case where he has sustained or will sustain direct injury as a result” of the act being
challenged, and “calls for more than just a generalized grievance.” The term “interest” refers to
material interest, as distinguished from one that is merely incidental.
Same; Same; Same; In cases of transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper even where there is no direct injury to the
party claiming the right of judicial review.—At any event, the primordial importance to Filipino
citizens in general of the issue at hand impels the Court to brush aside the procedural barrier
posed by the traditional requirement of locus standi, as we have done in a long line of earlier
cases, notably in the old but oft-cited emergency powers cases and Kilosbayan v. Guingona,
Jr., 232 SCRA 110 (1994). In cases of transcendental importance, we wrote again in Bayan v.
Zamora, 342 SCRA 449 (2000). “The Court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of judicial
review.”
Constitutional Law; Executive Department; Executive Agreements; Words and Phrases;
The terms “exchange of notes” and “executive agreements” have been used interchangeably,
exchange of notes being considered a form of executive agreement that becomes binding
through executive action.—In another perspective, the terms “exchange of notes” and
“executive agreements” have been used inter-
_______________
* EN BANC.
245
changeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand, executive agreements concluded
by the President “sometimes take the form of exchange of notes and at other times that of more
formal documents denominated ‘agreements’ or ‘protocols.’ ”
Same; Same; Same; There are no hard and fast rules on the propriety of entering, on a
given subject, into a treaty or an executive agreement as an instrument of international
relations.—There are no hard and fast rules on the propriety of entering, on a given subject, into
a treaty or an executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties’ intent and desire to craft an
international agreement in the form they so wish to further their respective interests.
Same; Same; Same; RP-US Non-Surrender Agreement; An executive agreement that
does not require the concurrence of the Senate for its ratification may not be used to amend a
treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the
Senate.—Petitioner’s reliance on Adolfo is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement
that does not require the concurrence of the Senate for its ratification may not be used to
amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive
and the Senate. The presence of a treaty, purportedly being subject to amendment by an
executive agreement, does not obtain under the premises. Considering the above discussion,
the Court need not belabor at length the third main issue raised, referring to the validity and
effectivity of the Agreement without the concurrence by at least two-thirds of all the members of
the Senate. The Court has, in Eastern Sea Trading, as reiterated in Bayan, given recognition to
the obligatory effect of executive agreements without the concurrence of the Senate.
Same; Same; Same; Same; The RP-US Non-Surrender Agreement is but a form of
affirmance and confirmance of the Philippines’ national criminal jurisdiction.—As it were,
the Agreement is but a form of affirmance and confirmance of the Philippines’ national criminal
jurisdiction. National criminal jurisdiction being primary,
246
as explained above, it is always the responsibility and within the prerogative of the RP
either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may decide to try “persons” of the US, as the term
is understood in the Agreement, under our national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or over US “persons” committing high
crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them.
Same; Same; Same; Same; International Law; One State can agree to waive jurisdiction
to subjects of another State due to the recognition of the principle of extraterritorial immunity.—
In the context of the Constitution, there can be no serious objection to the Philippines agreeing
to undertake the things set forth in the Agreement. Surely, one State can agree to waive
jurisdiction—to the extent agreed upon—to subjects of another State due to the recognition of
the principle of extraterritorial immunity.
Same; Same; Same; Same; Same; What the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, without the consent of the other
party, which may desire to prosecute the crime under its existing laws.—Persons who may have
committed acts penalized under the Rome Statute can be prosecuted and punished in the
Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for
the nonce, that all the formalities necessary to bind both countries to the Rome Statute have
been met. For perspective, what the Agreement contextually prohibits is the surrender by either
party of individuals to international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws. With the view we take of things,
there is nothing immoral or violative of international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the Rome Statute.
Same; Same; Same; Same; In agreeing to conclude the Agreement, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the
scope of the authority and discretion vested in her by the Constitution.—In thus agreeing to
conclude the Agreement thru E/N BFO-028-03, then
247
President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs,
acted within the scope of the authority and discretion vested in her by the Constitution. At the
end of the day, the President––by ratifying, thru her deputies, the non-surrender agreement––
did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to
her office.
Same; Same; Same; Same; Philippine Act on Crimes against International Humanitarian
Law, Genocide, and Other Crimes against Humanity (Republic Act No. 9851); Nowhere in RA
9851 is there a proviso that goes against the tenor of the Agreement.—RA 9851 clearly: (1)
defines and establishes the crimes against international humanitarian law, genocide and other
crimes against humanity; (2) provides penal sanctions and criminal liability for their commission;
and (3) establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction. Nowhere in RA 9851 is there a proviso that goes against
the tenor of the Agreement.
Same; Same; Same; Same; The power to enter into executive agreements has long
been recognized to be lodged with the President.—More importantly, an act of the executive
branch with a foreign government must be afforded great respect. The power to enter into
executive agreements has long been recognized to be lodged with the President. x x x The
rationale behind this principle is the inviolable doctrine of separation of powers among the
legislative, executive and judicial branches of the government. Thus, absent any clear
contravention of the law, courts should exercise utmost caution in declaring any executive
agreement invalid. In light of the above consideration, the position or view that the challenged
RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be
rejected.
CARPIO, J., Dissenting Opinion:
 Constitutional Law; Executive Agreements; RP-US Non-Surrender Agreement; View that
the RP-US Non-Surrender Agreement (Agreement) violates existing municipal laws on the
Philippine State’s obligation to prosecute persons responsible for any of the international crimes
of genocide, war crimes and other crimes against humanity.—The RP-US Non-Surrender
Agreement (Agreement) violates existing municipal laws on the Philippine State’s obligation
248
to prosecute persons responsible for any of the international crimes of genocide, war
crimes and other crimes against humanity. Being a mere executive agreement that is
indisputably inferior to municipal law, the Agreement cannot prevail over a prior or subsequent
municipal law inconsistent with it.
Same; Same; Same; Philippine Act on Crimes against International Humanitarian Law,
Genocide, and Other Crimes against Humanity (Republic Act No. 9851); View that Republic Act
No. 9851 requires that the RP-US Non-Surrender Agreement should be ratified as a treaty by
the Senate before the Agreement can take effect.—Republic Act No. 9851 (RA 9851) or
the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity requires that the RP-US Non-Surrender Agreement, which is in
derogation of the duty of the Philippines to prosecute those accused of grave international
crimes, should be ratified as a treaty by the Senate before the Agreement can take effect.
Same; Same; Same; Same; View that the RP-US Non-Surrender Agreement to be valid
and effective must be ratified by the Philippine Senate, and unless so ratified, the Agreement is
without force and effect.—Likewise, any derogation from the surrender option of the Philippines
under Section 17 of RA 9851 must be embodied in an applicable extradition law or treaty and
not in a mere executive agreement because such derogation violates RA 9851, which is
superior to, and prevails over, a prior executive agreement allowing such derogation. Under no
circumstance can a mere executive agreement prevail over a prior or subsequent law
inconsistent with such executive agreement. Thus, the RP-US Non-Surrender Agreement to be
valid and effective must be ratified by the Philippine Senate, and unless so ratified, the
Agreement is without force and effect.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari, Mandamus and Prohibition.
The facts are stated in the opinion of the Court.
Julius Garcia Matibag, Edre U. Olalia, Ephraim B. Cortez for petitioner.
249
VELASCO, JR., J.:
The Case
international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.5
On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the
Rome Statute which, by its terms, is “subject to ratification, acceptance or approval” by
_______________
1 Rollo, pp. 241-265.
2 He is now the DFA Secretary.
3 Rollo, pp. 74-145.
4 ROME STATUTE, Art. 1.
5 Id., Art. 5.
250
the signatory states.6 As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence process. The
Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No.
0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender
bilateral agreement (Agreement, hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the
US proposals embodied under the US Embassy Note adverted to and put in effect
the Agreement with the US government. In esse, the Agreement aims to protect what it refers to
and defines as “persons” of the RP and US from frivolous and harassment suits that might be
brought against them in international tribunals.8 It is reflective of the increasing pace of the
strategic security and defense partnership between the two countries. As of May 2, 2003, similar
bilateral agreements have been effected by and between the US and 33 other countries. 9
The Agreementpertinently provides as follows:
1. For purposes of this Agreement, “persons” are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to _______________
nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines
(RP) and the United States of America (USA). 6 ROME STATUTE, Article 125.
7 Rollo, pp. 68-69.
The Facts 8 Id., at p. 72, Paper on the RP-US Non-Surrender Agreement.
9 Id., at p. 70.
Petitioner Bayan Muna is a duly registered party-list group established to represent the 251
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of (a) be surrendered or transferred by any means to
Foreign Affairs during the period material to this case. Respondent Alberto Romulo was any international tribunal for any purpose,
impleaded in his capacity as then Executive Secretary.2 unless such tribunal has been established by
the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third
Rome Statute of the International Criminal Court country, or expelled to a third country, for the purpose of surrender to or
transfer to any international tribunal, unless such tribunal has been established
Having a key determinative bearing on this case is the Rome Statute 3 establishing the by the UN Security Council.
International Criminal Court (ICC) with “the power to exercise its jurisdiction over persons for the 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
most serious crimes of international concern x x x and shall be complementary to the national to a third country, the [US] will not agree to the surrender or transfer of that person by the third
criminal jurisdictions.”4 The serious crimes adverted to cover those considered grave under country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to
a third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall
continue to apply with respect to any act occurring, or any allegation arising, before the effective
date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the
non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that
the exchange of diplomatic notes constituted a legally binding agreement under international
law; and that, under US law, the said agreement did not require the advice and consent of the
US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agree-
_______________
10 Id., at p. 175.
252
ment and prays that it be struck down as unconstitutional, or at least declared as without force
and effect.
For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert the
constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF
[E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x xAgreementRespondents gravely abused
their discretion when they capriciously abandoned, waived and relinquished
our only legitimate recourse through the Rome Statute of the [ICC] to
prosecute and try “persons” as defined in the x x xAgreement, x x x or literally
any conduit of American interests, who have committed crimes of genocide,
crimes against humanity, war crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the
principle of good faith to refrain from doing all acts which would substantially
impair the value of the undertaking as signed.
C. Whether the x x xAgreementconstitutes an act which defeats the object and
purpose of the Rome Statute of the International Criminal Court and
contravenes the obligation of good faith inherent in the signature of the
President affixed on the Rome Statute of the International
253
Criminal Court, and if so whether the x x xAgreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for
grave abuse of discretion amounting to lack or excess of jurisdiction in
connection with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL
LAW.
III. WHETHER THE x x xAGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT
THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF
THE SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has
not been submitted to the Senate for concurrence, contravenes and undermines the Rome
Statute and other treaties. But because respondents expectedly raised it, we shall first tackle
the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity
or invalidity of the Agreement carries with it constitutional significance and is of paramount
importance that justifies its standing. Cited in
_______________
11 Id., at pp. 25-27.
254
this regard is what is usually referred to as the emergency powers cases, 12 in which ordinary
citizens and taxpayers were accorded the personality to question the constitutionality of
executive issuances.
Locus standi is “a right of appearance in a court of justice on a given
question.”13 Specifically, it is “a party’s personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result”14 of the act being challenged, and “calls for
more than just a generalized grievance.”15 The term “interest” refers to material interest, as
distinguished from one that is merely incidental. 16 The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a personal stake in the
outcome of the controversy is “to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.”17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the operation
of a law or any other government act, but by concerned citizens, taxpayers, or voters who
actually sue in the
_______________
12 Philconsa v. Gimenez, No. L-23326, December 18, 1965, 15 SCRA 479; Iloilo Palay &
Corn Planters Association, No. L-24022, March 3, 1965, 13 SCRA 377; Araneta v. Dinglasan,
84 Phil. 368 (1949).
13 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
 14 Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA 475;
citing Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338
SCRA 81.
15 Id.
16 Id.
17 Fariñas v. Executive Secretary, G.R. Nos. 147387 & 152161, December 10, 2003, 417
SCRA 503; citing Baker v. Carr, 369 U.S. 186 (1962). See also Gonzales v. Narvasa, G.R. No.
140835, August 14, 2000, 337 SCRA 733.
255
18 19
public interest. Consequently, in a catena of cases, this Court has invariably adopted a liberal
stance on locus standi.
Going by the petition, petitioner’s representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.20 expounded on this requirement, thus:
“In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement
of personal interest.”21
_______________
18 Agan, Jr. v. Philippine International Air Terminals Co., Inc., G.R. Nos. 155001, 155547 &
155661, May 5, 2003, 402 SCRA 612.
19 Constantino, Jr. v. Cuisia, G.R. No. 106064, October 13, 2005, 472 SCRA 515; Agan,
Jr., supranote 18; Del Mar v. Philippine Amusement and Gaming Corporation, G.R. No. 138298,
November 29, 2000, 346 SCRA 485; Tatad v. Garcia, G.R. No. 114222, April 6, 1995, 243
SCRA 436; Kilosbayan v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.
20 G.R. No. 160261, November 10, 2003, 415 SCRA 45.
21 Id., at pp. 136-137.
256
In the case at bar, petitioner’s representatives have complied with the qualifying conditions
or specific requirements exacted under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very least, their assertions
questioning the Agreementare made of a public right, i.e., to ascertain that the Agreement did
not go against established national policies, practices, and obligations bearing on the State’s
obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement
of locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited
emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental
importance, we wrote again in Bayan v. Zamora,24 “The Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to the party
claiming the right of judicial review.”
Moreover, bearing in mind what the Court said in Tañada v. Angara, “that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality or department of the government,” 25 we cannot but resolve head
on the issues raised before us. Indeed, where an action of any branch of government is
seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it
becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition,
issues are precisely raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
_______________
22 Supra note 12.
23 Supra note 19.
24 G.R. No. 138587, October 10, 2000, 342 SCRA 449.
25 G.R. No. 118295, May 2, 1997, 272 SCRA 18, 48-49.
257
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized international
doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the
generally accepted principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity with all nations. 26 An
exchange of notes falls “into the category of inter-governmental agreements,”27 which is an
internationally accepted form of international agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An “exchange of notes” is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers, diplomats or departmental heads.
The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.”28
In another perspective, the terms “exchange of notes” and “executive agreements” have
been used interchangeably, exchange of notes being considered a form of executive agree-
_______________
26 Cruz, PHILIPPINE POLITICAL LAW 55 (1995).
27 Harris, CASES AND MATERIALS ON INTERNATIONAL LAW 801 (2004).
28 Official Website of the UN <http://untreaty.un.org/English/guide.asp.>; cited in Abaya v.
Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720.
258
ment that becomes binding through executive action. 29On the other hand, executive agreements
concluded by the President “sometimes take the form of exchange of notes and at other times
that of more formal documents denominated ‘agreements’ or ‘protocols.’ ”30 As former US High
Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of
TradeAgreement Acts:
“The point where ordinary correspondence between this and other governments ends and
agreements—whether denominated executive agreements or exchange of notes or otherwise—
begin, may sometimes be difficult of ready ascertainment.”31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound––is a recognized mode of concluding a legally binding international written
contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as “an
international agreement concluded between states in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation.”32 International agreements may be in the form of (1) treaties
that require legislative concurrence after executive ratification; or (2) executive agreements that
are similar to treaties, except that they do not require legislative concur-
_______________
29 Abaya v. Ebdane, supra.
30 Id.; citing The Constitutionality of TradeAgreement Acts by Francis Sayre.
31 Cited in Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333; 3 SCRA 351
(1961).
32 Executive Order No. 459, dated November 25, 1997, contains a similar definition.
259
rence and are usually less formal and deal with a narrower range of subject matters than
treaties.33
Under international law, there is no difference between treaties and executive agreements
in terms of their binding effects on the contracting states concerned,34 as long as the negotiating
functionaries have remained within their powers.35 Neither, on the domestic sphere, can one be
held valid if it violates the Constitution.36 Authorities are, however, agreed that one is distinct
from another for accepted reasons apart from the concurrence-requirement aspect.37 As has
been observed by US constitutional scholars, a treaty has greater “dignity” than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people;38a
_______________
33 B.A. Boczek, INTERNATIONAL LAW : A DICTIONARY 346 (2005).
34 Bayan v. Zamora, supra note 24; citing Richard Erickson, “The Making of Executive
Agreements by the US Department of Defense,” 13 Boston U. Intl. L. J. 58 (1955); Randall, The
Treaty Power, 51 Ohio St. L.J., p. 4; see also Restatement (Third) of Foreign Relations Law §
301 (1987), which states that “[t]he terminology used for international agreements is varied.
Among the terms used are: treaty, convention, agreement, protocol, covenant, charter, statute,
act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement,
memorandum of understanding, and modus vivendi. Whatever their designation, all agreements
have the same legal status, except as their provisions or the circumstances of their conclusion
indicate otherwise.” (Emphasis supplied.)
35 Id., at p. 489; citing 5 Hackworth, DIGEST OF INTERNATIONAL LAW 395; cited in USAFE
Veterans Association Inc. v. Treasurer of the Philippines, 105 Phil. 1030, 1037 (1959).
36 Reid v. Covert, 354 U.S. 77 S. Ct.1230.
37 In the US constitutional system, it is the legal force of treaties and executive
agreements on the domestic plane.
38 Henkin, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 224 (2nd ed., 1996).
260
ratified treaty, unlike an executive agreement, takes precedence over any prior statutory
enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does
of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the
following observations made by US legal scholars: “[I]nternational agreements involving political
issues or changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those embodying adjustments of
detail carrying out well established national policies and traditions and those involving
arrangements of a more or less temporary nature take the form of executive agreements.” 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that
may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant,41holding that an executive agreement through an exchange of notes cannot be
used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trad-
_______________
39 Prof. Edwin Borchard, Treaties and Executive Agreements—Reply, Yale Law Journal,
June 1945; cited in Justice Antonio T. Carpio’s Dissent in Nicolas v. Romulo, G.R. Nos. 175888,
176051 & 176222, February 11, 2009, 578 SCRA 438.
40 No. L-14279, October 31, 1961, 3 SCRA 351, 356.
41 No. L-30650, July 31, 1970, 34 SCRA 166.
261
ing is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of international relations. The
primary consideration in the choice of the form of agreement is the parties’ intent and desire to
craft an international agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of
the enforcement of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda42principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
_______________
42 Latin for “agreements must be kept,” Black’s Law Dictionary (8th ed., 2004). The
principle of pacta sunt servanda, in its most common sense, refers to private contracts,
stressing that these pacts and clauses are the law between the parties, and implying that the
non-fulfilment of respective obligations is a breach of the pact.
With regard to international agreements, Art. 26 of the Vienna Convention on the Law of
Treaties (signed on May 23, 1969 and entered into force on January 27, 1980) states that
“every treaty in force is binding upon the parties to it and must be performed by them in good
faith.” Pacta sunt servandais based on good faith. This entitles states to require that obligations
be respected and to rely upon the obligations being respected. This good-faith basis of treaties
implies that a party to the treaty cannot invoke provisions of its domestic law as justification for a
failure to perform. The only limit to pacta sunt servanda is jus cogens (Latin for “compelling
law”), the peremptory norm of general international law.
262
nuclear safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said in his work referred to
earlier:
“x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the registration of trademarks and
copyrights, etc.x x x”
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a
treaty-implementing executive agreement,45 which necessarily would cover the same matters
subject of the underlying treaty.
But over and above the foregoing considerations is the fact that––save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution 46––when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is
_______________
43 Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance,
119 YLJ 140, 152 (2009).
44 Rotunda, Nowak and Young, Treatise on Constitutional Law 394; cited in then Chief
Justice Puno’s dissent in Bayan v. Zamora, supra.
45 Nicolas, supra note 39.
46 Sec. 25. After the expiration in 1991 of the [RP-US Military Bases Agreement] foreign
military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate, and when Congress so requires, ratified x x x in a national
referendum held for that purpose, and recognized as a treaty by the contracting state.
263
that treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.
Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement
that does not require the concurrence of the Senate for its ratification may not be used to
amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive
and the Senate. The presence of a treaty, purportedly being subject to amendment by an
executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreementwithout the concurrence by at
least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as
reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements without
the concurrence of the Senate:
“x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history, we have entered executive agreements covering such subjects as commercial
and consular relations, most favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of claims. The validity of
these has never been seriously questioned by our courts.”
_______________
47 Supra note 39.
48 Supra note 41.
49 Supra note 31.
264
The Agreement Not in Contravention
of the Rome Statute
It is the petitioner’s next contention that the Agreement undermines the establishment of
the ICC and is null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon
the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely
for the purpose of providing individuals or groups of individuals with immunity from the
jurisdiction of the ICC; and such grant of immunity through non-surrender agreements allegedly
does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state
parties with non-surrender agreements are prevented from meeting their obligations under the
Rome Statute, thereby constituting a breach of Arts. 27, 50 86,51 8952
_______________
50 Article 27
Irrelevance of official capacity
511. This Statue shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from exercising its
jurisdiction over such a person.
Article 86
General Obligation to Cooperate
States Parties shall, in accordance with the provisions of this Statute, cooperate fully with
the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.
52 Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together
with the material supporting the request outlined in article 91, to any State on the territory of
which that person may be found and shall request the cooperation of that State in the arrest and
surrender of such a person. States Parties shall, in accordance with the provisions of this Part
265
and 9053 thereof.
_______________
and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on
the basis of the principle of neb is in idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has been a relevant ruling on
admissibility. If the case is admissible, the requested State shall proceed with the execution of
the request. If an admissibility ruling is pending, the requested State may postpone the
execution of the request for surrender of the person until the Court makes a determination on
admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law,
transportation through its territory of a person being surrendered to the Court by another State,
except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87.
The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
 (iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is
scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may
require a request for transit from the Court as provided for in subparagraph (b). The transit State
shall detain the person being transported until the request for transit is received and the transit
is effected, provided that detention for purposes of this subparagraph may not be extended
beyond 96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the
requested State for a crime different from that for which surrender to the Court is sought, the
requested State, after making its decision to grant the request, shall consult with the Court.
53 Article 90
Competing requests
1. A State Party which receives a request from the Court for the surrender of a person
under article 89 shall, if it also receives a request from any other State for the extradition of the
same person for the same conduct which forms the basis of the crime for which the Court seeks
the person’s surrender, notify the Court and the requesting State of that fact.
266
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the
_______________
2. Where the requesting State is a State Party, the requested State shall give priority to
the request from the Court if:
(a) The Court has, pursuant to article 18 or 19, made a determination that the case in
respect of which surrender is sought is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in respect of its request for
extradition; or
(b) The Court makes the determination described in subparagraph (a) pursuant to the
requested State’s notification under paragraph 1.
3. Where a determination under paragraph 2 (a) has not been made, the requested State
may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to
deal with the request for extradition from the requesting State but shall not extradite the person
until the Court has determined that the case is inadmissible. The Court’s determination shall be
made on an expedited basis.
4. If the requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall give
priority to the request for surrender from the Court, if the Court has determined that the case is
inadmissible.
5. Where a case under paragraph 4 has not been determined to be admissible by the
Court, the requested State may, at its discretion, proceed to deal with the request for extradition
from the requesting State.
6. In cases where paragraph 4 applies except that the requested State is under an
existing international obligation to extradite the person to the requesting State not Party to this
Statute, the requested State shall determine whether to surrender the person to the Court or
extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to:
(a) The respective dates of the requests;
(b) The interests of the requesting State including, where relevant, whether the crime was
committed in its territory and the nationality of the victims and of the person sought; and
(c) The possibility of subsequent surrender between the Court and the requesting State.
7. Where a State Party which receives a request from the Court for the surrender of a
person also receives a request from any State for the extradition of the same person for conduct
other than that which constitutes the crime for which the Court seeks the person’s surrender:
(a) The requested State shall, if it is not under an existing international obligation to
extradite the person to the requesting State, give priority to the request from the Court;
267
worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort,
by the ICC; thus, any agreement—like the non-surrender agreement—that precludes the ICC
from exercising its complementary function of acting when a state is unable to or unwilling to do
so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has an
immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor
does it differ from, the Rome Statute. Far from going against each other, one complements the
other. As a matter of fact, the principle of complementarity underpins the creation of the ICC. As
aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to “be
complementary to national criminal jurisdictions [of the signatory states].”54 Art. 1 of the Rome
Statute pertinently provides:
_______________
(b) The requested State shall, if it is under an existing international obligation to extradite
the person to the requesting State, determine whether to surrender the person to the Court or to
extradite the person to the requesting State. In making its decision, the requested State shall
consider all the relevant factors, including but not limited to those set out in paragraph 6, but
shall give special consideration to the relative nature and gravity of the conduct in question.
8. Where pursuant to a notification under this article, the Court has determined a case to
be inadmissible, and subsequently extradition to the requesting State is refused, the requested
State shall notify the Court of this decision.
54 Tenth preambular paragraph of the ICC Statute.
268
Article 1
The Court
“An International Crimininal Court (“the Court”) is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions
of this Statute.” (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that “it is the
duty of every State to exercise its criminal jurisdiction over those responsible for international
crimes.” This provision indicates that primary jurisdiction over the so-called international crimes
rests, at the first instance, with the state where the crime was committed; secondarily, with the
ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art.
20, Rome Statute, which
_______________
55 1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall
determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it,
unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State
has decided not to prosecute the person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute;
 (c) The person concerned has already been tried for conduct which is the subject of the
complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
56 Latin for “not twice for the same,” a legal principle that means no legal action can be
instituted twice for the same cause of
269
again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
relevant, the provision states that “no person who has been tried by another court for conduct
x x x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court
with respect to the same conduct x x x.”
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the
ICC; or the idea of the Agreement substantially impairing the value of the RP’s undertaking
under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute
ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes
the primary jurisdiction of states, like the RP, over serious crimes committed within their
respective borders, the complementary jurisdiction of the ICC coming into play only when the
signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioner’s suggestion––that the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention57 to refrain from performing any act tending to impair
the value of a treaty, e.g., the Rome Statute––has to be rejected outright. For nothing in the
provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of
the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the
_______________
action. In gist, it is a legal concept substantially the same as or synonymous to double jeopardy.
57 A state is obliged to refrain from acts that would defeat the object and purpose of a
treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention clear not to
become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry into force is not unduly
delayed.
270
Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform an act that would violate
some international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute,
which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that State
to the Court, unless the Court can first obtain the cooperation of the sending State for the giving
of consent for the surrender.”
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the provisions
of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any argument
obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioner’s argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
_______________
58 VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18.
271
89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that “[i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x” In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute;
and second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty
by bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in
the Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction being
primary, as explained above, it is always the responsibility and within the prerogative of the RP
either to prosecute
272
criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction of the
ICC. Thus, the Philippines may decide to try “persons” of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt not to exercise its
criminal jurisdiction over its erring citizens or over US “persons” committing high crimes in the
country and defer to the secondary criminal jurisdiction of the ICC over them. As to “persons” of
the US whom the Philippines refuses to prosecute, the country would, in effect, accord
discretion to the US to exercise either its national criminal jurisdiction over the “person”
concerned or to give its consent to the referral of the matter to the ICC for trial. In the same
breath, the US must extend the same privilege to the Philippines with respect to “persons” of the
RP committing high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the RP-
US Visiting Forces Agreement—is apropos:
 “Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another State’s territory. x x x”
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agree-
_______________
59 Supra note 39.
273
ment, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision
a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to
the policy of cooperation and amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of
one contracting party to grant the same privileges or immunities to the other. On the rationale
that the Philippines has adopted the generally accepted principles of international law as part of
the law of the land, a portion of sovereignty may be waived without violating the
Constitution.61 Such waiver does not amount to an unconstitutional diminution or deprivation of
jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner
would put it, “leaves criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it pre-
_______________
60 CONSTITUTION, Art. II, Sec. 2.
61 Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
62 Dizon v. Phil. Ryubus Command, 81 Phil. 286 (1948); cited in Agpalo, PUBLIC
INTERNATIONAL LAW 222-223 (2006).
274
cludes our country from delivering an American criminal to the [ICC] x x x.”63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, “is an assertion by the Philippines of its
desire to try and punish crimes under its national law. x x x The agreement is a recognition of
the primacy and competence of the country’s judiciary to try offenses under its national criminal
laws and dispense justice fairly and judiciously.”
Petitioner, we believe, labors under the erroneous impression that the Agreement would
allow Filipinos and Americans committing high crimes of international concern to escape
criminal trial and punishment. This is manifestly incorrect. Persons who may have committed
acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that
all the formalities necessary to bind both countries to the Rome Statute have been met. For
perspective, what the Agreement contextually prohibits is the surrender by either party of
individuals
_______________
63 Rollo, pp. 53-54.
64 Under VIENNA CONVENTION ON THE LAW OF TREATIES, Art. 18, a State has the obligations
not to defeat the object and purpose of a treaty prior to its entry into force when (a) it has signed
the treaty or has exchanged instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention clear not to become a party to the
treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force
of the treaty and provided that such entry into force is not unduly delayed.
275
to international tribunals, like the ICC, without the consent of the other party, which may desire
to prosecute the crime under its existing laws. With the view we take of things, there is nothing
immoral or violative of international law concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in
the Agreement. And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on. As to the second portion, We wish to state
that petitioner virtually faults the President for performing, through respondents, a task conferred
the President by the Constitution—the power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state
and government, is the sole organ and authority in the external affairs of the country. 65 The
Constitution vests in the President the power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated,
executive agreements may be validly entered into without such concurrence. As the President
wields vast powers and influence, her conduct in the external affairs of the nation is,
as Bayan would put it, “executive altogether.” The
_______________
65 Bayan v. Zamora, supra.
276
right of the President to enter into or ratify binding executive agreements has been confirmed by
long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of
the authority and discretion vested in her by the Constitution. At the end of the day, the
President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the
Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the
Statute in that instance, rests with the President, subject to the concurrence of the Senate,
whose role relative to the ratification of a treaty is limited merely to concurring in or withholding
the ratification. And concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latter’s consent to
the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court hastened to add, is
the President’s alone and cannot be encroached upon via a writ of mandamus. Barring
intervening events, then, the Philippines remains to be just a signatory to the Rome Statute.
Under Art. 12569thereof, the final acts
_______________
66 Id.; citing Commissioner of Customs, supra.
67 G.R. No. 158088, July 6, 2005, 462 SCRA 622.
68 Id., at pp. 637-638; citing Cruz, INTERNATIONAL LAW 174 (1998).
69 Signature, ratification, acceptance, approval or accession.
1. This Statute shall be open for signature by all States in Rome, at the headquarters of
the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it
shall remain
277
required to complete the treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity.” Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
“Section 17. Jurisdiction.—x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or extradite suspected or accused persons
in the Philippines to the appropriate international court, if any, or to another State
pursuant to the applicable extradition laws and treaties.” (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the State’s
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes
_______________
open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After
that date, the Statute shall remain open for signature in New York, at United Nations
Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States.
Instruments of ratification, acceptance or approval shall be deposited with the Secretary-
General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall
be deposited with the Secretary-General of the United Nations.
278
against humanity and war crimes. Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper international tribunal those
persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1)
surrender the accused to the proper international tribunal; or (2) surrender the accused to
another State if such surrender is “pursuant to the applicable extradition laws and treaties.” But
the Philippines may exercise these options only in cases where “another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such crime;”
otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the option to surrender such US national to the
international tribunal if it decides not to prosecute such US national here. The view asserts that
this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US,
and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the
Philippines can exercise such option, requires an amendatory law. In line with this scenario, the
view strongly argues that the Agreement prevents the Philippines—without the consent of the
US—from surrendering to any international tribunal US nationals accused of crimes covered by
RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly
impressed that the Agreement cannot be embodied in a simple executive agreement in the form
of an exchange of notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.279
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the “generally accepted principles of
international law as part of the law of the land,” the Court is further impressed to perceive
the Rome Statute as declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or custom and for which
reason it assumes the status of an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of
the executive branch, can only implement, but cannot amend or repeal, an existing law.
The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law or
alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence
of the Senate, the theory being that a Senate—ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851
and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2,
Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the Agreement alters. And for a third, it does
not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreementdoes not undermine the Rome Statute as
the former merely reinforces the primacy of the national jurisdiction of the US and the
Philippines in prosecuting criminal offenses committed by
280
their respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably
complementary to the national criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions
and criminal liability for their commission;71 and (3) establishes special courts for the
prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of
the Agreement.
 The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal those persons
accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to
prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretionto the Philippine State on whether to surrender or not a person accused of
the crimes under RA 9851. The statutory proviso uses the word “may.” It is settled doctrine in
statutory construction that the word “may” denotes discretion, and cannot be construed as
having mandatory effect.73Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where “another court or in-
_______________
70 RA 9851, Secs. 4-6.
71 Id., Secs. 7-12.
72 Id., Secs. 17-18.
73 Republic Planters Bank v. Agana, Sr., G.R. No. 51765, May 3, 1997, 269 SCRA 1, 12.
281
ternational tribunal is already conducting the investigation or undertaking the prosecution of
such crime,” still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal
proviso aptly provides that the surrender may be made “to another State pursuant to the
applicable extradition laws and treaties.” The Agreement can already be considered a treaty
following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v.
Rossi.75 In Nicolas, We held that “an executive agreement is a ‘treaty’ within the meaning of that
word in international law and constitutes enforceable domestic law vis-à-vis the United States.”76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on
the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus,
the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
counter to Sec. 17 of RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions
were filed questioning the power of the President to enter into foreign loan agreements.
However, before the petitions could be resolved by the Court, the Office of the Solicitor General
filed a Manifestation and Motion averring that the Philippine Government decided not to
continue with the ZTE National Broadband Network Project, thus rendering the petition moot. In
resolving the case, the Court took judicial notice of the act of the executive department of the
Philippines (the President) and found the petition to be indeed moot. Accordingly, it dismissed
the petitions.
_______________
74 Supra note 39.
75 456 U.S. 25 (1982).
76 Nicolas v. Romulo, G.R. Nos. 175888, 176051 & 176222, February 11, 2009, 578 SCRA
438, 467.
77 G.R. No. 178830, July 14, 2008, 558 SCRA 329.
282
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications
of an executive agreement. He stated that “an executive agreement has the force and effect of
law x x x [it] cannot amend or repeal priorlaws.”78 Hence, this argument finds no application in
this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for
the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, “[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting
Parties x x x,”79 and thereby concluding that while the Philippines has criminalized under RA
9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against
humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v.
Coolidge, in the US, a person cannot be tried in the federal courts for an international crime
unless Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war
crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of “war crimes” which is similar to the war crimes found in both
the Rome Statute and RA 9851, thus:
(a) Offense—Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or im-
_______________
78 Id., at p. 376. (Emphasis supplied.)
79 Par. 1, Art. 2, RP-US Extradition Treaty, Senate Resolution No. 11, November 27, 1995
(emphasis supplied).
283
prisoned for life or any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death.
(b) Circumstances—The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section 101 of
the Immigration and Nationality Act).
(c) Definition—As used in this Section the term “war crime” means any conduct—
(1) Defined as a grave breach in any of the international conventions signed at
Geneva 12 August 1949, or any protocol to such convention to which the
United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention
IV, Respecting the Laws and Customs of War on Land, signed 18 October
1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in
subsection [d]) when committed in the context of and in association with an
armed conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions
of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-
Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II
as amended on 3 May 1996), when the United States is a party to such
Protocol, willfully kills or causes serious injury to civilians. 80
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense—Whoever, whether in the time of peace or in time of war and with
specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or
religious group as such—
_______________
80 18 U.S.C.A. § 2441.
284
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;
 (4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group; shall be punished as
provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover
every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view used a
report written by Victoria K. Holt and Elisabeth W. Dallas, entitled “On Trial: The US Military and
the International Criminal Court,” as its basis.
At the outset, it should be pointed out that the report used may not have any weight or
value under international law. Article 38 of the Statute of the International Court of Justice (ICJ)
lists the sources of international law, as follows: (1) international conventions, whether general
or particular, establishing rules expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law. The report does not fall under any of the
foregoing enumerated sources. It cannot even be considered as the “teachings of highly
qualified publicists.” A highly qualified publicist is a
_______________
81 18 U.S.C.A. § 1091.
285
scholar of public international law and the term usually refers to legal scholars or “academic
writers.”82 It has not been shown that the authors83 of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of
the crimes are nonexistent. To highlight, the table below shows the definitions of genocide and
war crimes under the Rome Statute vis-à-vis the definitions under US laws:
_______________
82 Malcolm Shaw, INTERNATIONAL LAW 112 (2008).
83 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International
Criminal Court,” The Henry L. Stimson Center, Report No. 55, March 2006, p. 92; available at
<http://www.stimson.org/images/uploads/research-pdfs/US_Military_
and_the_ICC_FINAL_website.pdf> last visited January 27, 2011. We quote Holt and Dallas’
profiles from the report:
Victoria K. Holt is a senior associate at the Henry L. Stimson Center, where she co-directs
the Future of Peace Operations program. She has co-authored a study of peacekeeping
reforms at the United Nations, analyzing the implementation of the 2000 Brahimi Report
recommendations, and recently completed reports on African capacity for peace operations and
the protection of civilians by military forces. Ms. Holt joined the Stimson Center in 2001, bringing
policy and political expertise on UN and peacekeeping issues from her work at the US
Department of State, in the NGO community and on Capitol Hill. She served as Senior Policy
Advisor at the US State Department (Legislative Affairs), where she worked with Congress on
issues involving UN peacekeeping and international organizations. Prior to joining State, she
was Executive Director of the Emergency Coalition for US Financial Support of the United
Nations, and also directed the Project on Peacekeeping and the UN at the Center for Arms
Control and Nonproliferation in Washington, DC. From 1987 to 1994, Ms. Holt worked as a
senior Congressional staffer, focusing on defense and foreign policy issues for the House
Armed Services Committee. She served as Legislative Director for Rep. Thomas H. Andrews
and as Senior Legislative Assistant to Rep. George J. Hochbrueckner. Ms. Holt is a graduate of
the Naval War College and holds a B.A. with honors from Wesleyan University.
Elisabeth W. Dallas is a research associate with the Henry L. Stimson Center’s Future of
Peace Operations program and is focusing her work on the restoration of the rule of law in post-
conflict settings. In particular, she is analyzing what legal mechanisms are required to allow for
international criminal jurisdiction within UN peace operations. Prior to working at the Stimson
Center, Ms. Dallas was a Senior Fellow with the Public International Law & Policy Group in
Washington, DC, where she served as a political and legal advisor for parties during
international peace negotiations taking place in the Middle East, the Balkans and South Asia.
Ms. Dallas earned an MA from Tufts University’s Fletcher School of Law & Diplomacy with a
concentration in International Negotiation & Conflict Resolution and Public International Law, as
well as a Certificate in Human Security and Rule of Law. She earned her BA from Haverford
College. (Emphasis supplied.)
286
287
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84 (i) Willful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Willfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a
hostile Power;
(vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
85 (d) Common Article 3 violations.—
(1) Prohibited conduct—In subsection (c)(3), the term “grave breach of common Article 3”
means any conduct (such conduct constituting a grave breach of common Article 3 of the
international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.—The act of a person who commits, or conspires or attempts to
commit, an act specifically intended to inflict severe physical or mental pain or suffering
(other than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control for the purpose of obtaining information or a confession,
punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.—The act of a person who commits, or conspires
or attempts to commit, an act intended to inflict severe or serious physical or mental
pain or suffering (other than pain or suffering incidental to lawful sanction), including
serious physical abuse, upon another within his custody or control.
(C) Performing biological experiments.—The act of a person who subjects, or
conspires or attempts to subject, one or more person within his custody or physical
control to biological experiments without a legitimate medical or dental purpose and in
so doing endangers the body or health of such person or persons.
(D) Murder.—The act of a person who intentionally or unintentionally in the
course of committing any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those placed out of combat by sickness,
wounds, detention, or any other cause.
(E) Mutilation or maiming.—The act of a person who intentionally injures, or
conspires or attempts to injure, or injures whether intentionally or unintentionally in the
course of committing any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those placed out of combat by sickness,
 wounds, detention, or any other cause, by disfiguring the person or persons by any
mutilation
288
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thereof or by permanently disabling any member, limb, or organ of his body,
without any legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury.—The act of a person who
intentionally causes, or conspires or attempts to cause, serious bodily injury to one or
more persons, including lawful combatants, in violation of the law of war.
(G) Rape.—The act of a person who forcibly or with coercion or threat of force
wrongfully invades, or conspires or attempts to invade, the body of a person by
penetrating, however slightly, the anal or genital opening of the victim with any part of
the body of the accused, or with any foreign object.
(H) Sexual assault or abuse.—The act of a person who forcibly or with coercion
or threat of force engages, or conspires or attempts to engage, in sexual contact with
one or more persons, or causes, or conspires or attempts to cause, one or more
persons to engage in sexual contact.
(I) Taking hostages.—The act of a person who, having knowingly seized or
detained one or more persons, threatens to kill, injure, or continue to detain such
person or persons with the intent of compelling any nation, person other than the
hostage, or group of persons to act or refrain from acting as an explicit or implicit
condition for the safety or release of such person or persons.
(2) Definitions.—In the case of an offense under subsection (a) by reason of subsection
(c)(3)—
(A)the term “severe mental pain or suffering” shall be applied for purposes of
paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section
2340 (2) of this title;
(B) the term “serious bodily injury” shall be applied for purposes of paragraph
(1)(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;
(C) the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in
accordance with the meaning given that term in section 2246 (3) of this title;
(D) the term “serious physical pain or suffering” shall be applied for purposes of
paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts,
abrasions, or bruises); or
(iv) a significant loss or impairment of the function of a bodily member,
organ, or mental faculty; and
289
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit:
“Few believed there were wide differences between the crimes under the jurisdiction of the
Court and crimes within the Uniform Code of Military Justice that would expose US personnel to
the Court. Since US military lawyers were instrumental in drafting the
_______________
E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph
(1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as
defined in section 2340(2) of this title), except that —
(i) the term “serious shall replace the term “sever” where it appears; and
(ii) as to conduct occurring after the date of the enactment of the Military
Commissions Act of 2006, the term “serious and non-transitory mental harm (which
need not be prolonged)” shall replace the term “prolonged mental harm” where it
appears.
(3) Inapplicability of certain provisions with respect to collateral damage or incident of
lawful attack.—The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or
paragraph (1) precludes the applicability of those subparagraphs to an offense under
subsection (A) by reasons of subsection (C)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.
(4) Inapplicability of taking hostages to prisoner exchange.—Paragraph (1)(I) does not
apply to an offense under subsection (A) by reason of subsection (C)(3) in the case of a
prisoner exchange during wartime.
(5) Definition of grave breaches.—The definitions in this subsection are intended only to
define the grave breaches of common Article 3 and not the full scope of United States
obligations under that Article.
86 18 U.S.C.A. § 2441.
290
elements of crimes outlined in the Rome Statute, they ensured that most of the crimes were
consistent with those outlined in the UCMJ and gave strength to complementarity for the US.
Small areas of potential gaps between the UCMJ and the Rome Statute, military experts
argued, could be addressed through existing military laws.87 x x x”
The report went on further to say that “[a]ccording to those involved, the elements of crimes
laid out in the Rome Statute have been part of US military doctrine for decades.” 88 Thus, the
argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the
doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Habana89 case already held international law as part of the law of the US, to wit:
“International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending upon it are
duly presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs
and usages of civilized nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience have made themselves
peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their authors concerning what the law ought to be,
but for the trustworthy evidence of what the law really is.”90 (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling
_______________
87 Victoria K. Holt and Elisabeth W. Dallas, supra note 83, at p. 7.
88 Id., at p. 35.
89 175 U.S. 677, 20 S.Ct. 290 (1900).
90 Id., at p. 700; citing Hilton v. Guyot, 159 U.S. 113, 163, 164, 214, 215, 40 L. ed. 95,
108, 125, 126, 16 Sup. Ct. Rep. 139.
291
in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson,92 only applies to
common law and not to the law of nations or international law. 93 Indeed, the Court in U.S. v.
Hudson only considered the question, “whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal cases.”94 Stated otherwise, there is no common
law crime in the US but this is considerably different from international law.
The US doubtless recognizes international law as part of the law of the land, necessarily
including international crimes, even without any local statute. 95 In fact, years later, US courts
would apply international law as a source of criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that
“[f]rom the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status,
rights and duties of enemy nations as well as of enemy individuals.”97 It went on further to
explain
_______________
91 14 U.S. 415, 1816 WL 1770 (U.S.Mass.) (1816).
92 11 U.S. (7 Cranch) 32 (1812).
93 Jordan J. Paust, CUSTOMARY INTERNATIONAL LAW AND HUMAN RIGHTS TREATIES ARE LAW
OF THE UNITED STATES, 20 MIJIL 301, 309 (1999).
94 11 U.S. (7 Cranch) 32, 32 (1812).
95 “x x x [C]ustomary international law is part of the law of the United States to the limited
extent that, where there is no treaty, and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized nations.” U.S. v. Yousef,
327 F.3d 56, 92 (2003).
96 317 U.S. 1 (1942).
97 Id., at pp. 27-28; citing Talbot v. Jansen, 3 Dall. 133, 153, 159, 161, 1 L.Ed. 540; Talbot
v. Seeman, 1 Cranch 1, 40, 41, 2 L.Ed. 15; Maley v. Shattuck, 3 Cranch 458, 488, 2 L.Ed.
498; Fitzsimmons v. Newport Ins. Co., 4 Cranch 185, 199, 2 L.Ed. 591; The Rapid, 8 Cranch
155, 159-164, 3 L.Ed. 520; The St. Lawrence, 9 Cranch 120, 122, 3 L.Ed. 676; Thirty
Hogsheads of Sugar v. Boyle, 9 Cranch 191,
292
that Congress had not undertaken the task of codifying the specific offenses covered in the law
of war, thus:
“It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries,
or to enumerate or define by statute all the acts which that law condemns. An Act of
Congress punishing ‘the crime of piracy as defined by the law of nations is an appropriate
exercise of its constitutional authority, Art. I, s 8, cl. 10, ‘to define and punish’ the offense since it
has adopted by reference the sufficiently precise definition of international law. x x x Similarly by
the reference in the 15th Article of War to ‘offenders or offenses that x x x by the law of war may
be triable by such military commissions. Congress has incorporated by reference, as within the
jurisdiction of military commissions, all offenses which are defined as such by the law of war
x x x, and which may constitutionally be included within that jurisdiction.”98 x x x (Emphasis
supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been
held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained
the status of jus cogens.99
_______________
197, 198, 3 L.Ed. 701; The Anne, 3 Wheat. 435, 447, 448, 4 L.Ed. 428; United States v.
Reading, 18 How. 1, 10, 15 L.Ed. 291; Prize Cases (The Amy Warwick), 2 Black 635, 666, 667,
687, 17 L.Ed. 459; The Venice, 2 Wall. 258, 274, 17 L.Ed. 866; The William Bagaley, 5 Wall.
377, 18 L.Ed. 583; Miller v. United States, 11 Wall. 268, 20 L.Ed. 135; Coleman v. Tennessee,
97 U.S. 509, 517, 24 L.Ed. 1118; United States v. Pacific R.R., 120 U.S. 227, 233, 7 S.Ct. 490,
492, 30 L.Ed. 634; Juragua Iron Co. v. United States, 212 U.S. 297, 29 S.Ct. 385, 53 L.Ed. 520.
98 Id., at pp. 29-30.
99 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, I.C.J. judgment,
February 26, 2007, § 161; M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio
Erga Omnes, 59-AUT Law & Contemp. Probs. 63, 68.
293
Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ.100 It is defined as the “general and consistent practice of states
recognized and followed by them from a sense of legal obligation.”101 In order to establish the
customary status of a particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.103 It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration. 104 While, opinio juris, the
psychological element, requires that the state practice or norm “be carried out in such a way, as
to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.”105
“The term ‘jus cogens’ means the ‘compelling law.’ ”106 Corollary, “a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles.” 107 As a
result, jus cogens norms are deemed “peremptory and non-
_______________
100 I.C.J. Statute, art. 38, ¶ 1 (b) international custom, as evidence of a general practice
accepted as law.
101 North Sea Continental Shelf, 1969 I.C.J. ¶ 77; cited in Patrick Simon S.
Perillo, Transporting the Concept of Creeping Expropriation from De Lege Ferenda to De Lege
Lata: Concretizing the Nebulous Under International Law, 53 Ateneo L.J. 434, 509-510 (2008).
102 North Sea Continental Shelf, 1969 I.C.J. ¶ 77; D.J. Harris, CASES AND MATERIALS ON
INTERNATIONAL LAW , 22 (2004).
103 North Sea Continental Shelf, 1969 I.C.J. at 175 (Tanaka, J., dissenting).
104 Fisheries Jurisdiction (U.K. v. Ice) (Merits), 1974 I.C.J. 3, 89-90 (de Castro, J., separate
opinion).
105 North Sea Continental Shelf, 1969 I.C.J. ¶ 77.
106 M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59-
AUT Law & Contemp. Probs. 63, 67.
107 Id.
294
derogable.”108 When applied to international crimes, “jus cogens crimes have been deemed so
fundamental to the existence of a just international legal order that states cannot derogate from
them, even by agreement.”109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., “any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists.”110 “The rationale behind
this principle is that the crime committed is so egregious that it is considered to be committed
against all members of the international community”111and thus granting every State jurisdiction
over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found
in the Rome Statute is not declaratory of customary international law.
The first element of customary international law,i.e., “established, widespread, and
consistent practice on the part of States,”113 does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010,
_______________
108 Id.
109 Carlee M. Hobbs, THE CONFLICT BETWEEN THE ALIEN TORT STATUTE LITIGATION AND
FOREIGN AMNESTY LAWS, 43 Vand. J. Transnat’l L. 505, 521 (2009-2010); citing Jeffrey L.
Dunoff, et al.,INTERNATIONAL LAW : Norms, Actors Process 58-59 (2d ed., 2006).
 110 Id.; citing Jeffrey L. Dunoff et al., INTERNATIONAL LAW : Norms, Actors Process 380 (2d
ed., 2006).
111 Id.
112 Id.
113 Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No.
173034, October 9, 2007, 535 SCRA 265.
295
only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8)
years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194115 countries in the
world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the
perceived principles contained in the Statute have attained the status of customary law and
should be deemed as obligatory international law. The numbers even tend to argue against the
urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even
feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed
since the Philippine representative signed the Statute, but the treaty has not been transmitted to
the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
“Custom or customary international law means “a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x.” This statement contains
the two basic elements of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
_______________
114 See <http://www.icc-cpi.int/Menus/ASP/states+parties/> (last visited January 26, 2011).
115 <http://www.nationsonline.org oneworld /states.org> (last visited October 18, 2010).
The list does not include dependent territories.
296
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because
they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio
juris, or the belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.”116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it. 117 Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent. 118 Even further, the
_______________
116 Joaquin G. Bernas, S.J., An INTRODUCTION TO PUBLIC INTERNATIONAL LAW 10-13
(2002); cited in Pharmaceutical and Health Care Association of the Philippines v. Duque
III, supra note 113, at p. 292.
117 Pharmaceutical and Health Care Association of the Philippines, supra note 113, at pp.
290-291; citation omitted.
118 Article 12. Preconditions to the exercise of jurisdiction.
297
Rome Statute specifically and unequivocally requires that: “This Statute is subject to
ratification, acceptance or approval by signatory States.”119 These clearly negate the argument
that such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been recognized
to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of
Public Officers and Investigations, “[t]he power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence.”120The rationale behind this principle is the inviolable doctrine of separation of
powers among the legislative, executive and judicial branches of the government. Thus, absent
any clear contravention of the law, courts should exercise utmost caution in declaring any
executive agreement invalid.
_______________
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the
Court with respect to the crimes referred to in article 5.
2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if
one or more of the following States are Parties to this Statute or have accepted the jurisdiction
of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft.
(b) The State of which the person accused of the crime is a national.
119 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, Art. 25, par. 2.
120 G.R. No. 180643, September 4, 2003, 564 SCRA 152, 197-198.
298
In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED
for lack of merit. No costs.
SO ORDERED.
Corona (C.J), Nachura, Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perezand
Mendoza, JJ., concur.
Carpio, J., See Dissenting Opinion.
Carpio-Morales, J., I join the Dissent of J. Carpio.
Brion, J., No Part.
Sereno, J., I concur in the result.
DISSENTING OPINION
CARPIO, J.:
I dissent.
The RP-US Non-Surrender Agreement (Agreement) violates existing municipal laws on the
Philippine State’s obligation to prosecute persons responsible for any of the international crimes
of genocide, war crimes and other crimes against humanity. Being a mere executive agreement
that is indisputably inferior to municipal law, the Agreement cannot prevail over a prior or
subsequent municipal law inconsistent with it.
First, under existing municipal laws arising from the incorporation doctrine in Section 2,
Article II of the Philippine Constitution,1 the State is required to surrender to the proper
_______________
1 CONSTITUTION (1987), Art. II, Sec. 2 provides: “The Philippines xxx adopts the generally
accepted principles of international law as part of the law of the land and adheres to the
299
international tribunal persons accused of grave international crimes, if the State itself does not
exercise its primary jurisdiction to prosecute such persons.
Second, and more importantly, Republic Act No. 9851 (RA 9851) or the Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against
Humanity requires that the RP-US Non-Surrender Agreement, which is in derogation of the duty
of the Philippines to prosecute those accused of grave international crimes, should be ratified as
a treaty by the Senate before the Agreement can take effect.
Section 2 of RA 9851 adopts as a State policy the following:
“Section 2. Declaration of Principles and State Policies.—
(a) x x x
xxx
(e) The most serious crimes of concern to the international community as a whole must not go
unpunished and their effective prosecution must be ensured by taking measures at the national
level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute
to the prevention of such crimes, it being the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes.” (Emphasis supplied)
To implement this State policy, Section 17 of RA 9851 provides:
“Section 17. Jurisdiction.—The State shall exercise jurisdiction over persons, whether
military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless
of where the crime is committed, provided, any one of the following conditions is met:
(a) The accused is a Filipino citizen;
_______________
policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”
300
(b) The accused, regardless of citizenship or
residence, is present in the Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.
In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or
international tribunal is already conducting the investigation or undertaking the
prosecution of such crime. Instead, the authorities may surrender or extradite suspected
or accused persons in the Philippines to the appropriate international court, if any, or to
another State pursuant to the applicable extradition laws and treaties.” (Boldfacing,
italicization and underscoring supplied)
Section 2(e) and Section 17 impose on the Philippines the “duty” to prosecute a person
present in the Philippines, “regardless of citizenship or residence” of such person, who is
accused of committing a crime under RA 9851 “regardless of where the crime is committed.”
The Philippines is expressly mandated by law to prosecute the accused before its own courts.
If the Philippines decides not to prosecute such accused, the Philippines has only two
options. First, it may surrender the accused to the “appropriate international court” such as the
International Criminal Court (ICC). Or second, it may surrender the accused to another State if
such surrender is “pursuant to the applicable extradition laws and treaties.” Under the
second option, the Philippines must have an applicable extradition law with the other State, or
both the Philippines and the other State must be signatories to an applicable treaty. Such
applicable extradition law or treaty must not frustrate the Philippine State policy, which
embodies a generally accepted principle of international law, that it is “the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes.”
In any case, the Philippines can exercise either option only if“another court or
international tribunal is already conducting the investigation or undertaking the prose-
301
cution of such crime.” In short, the Philippines should surrender the accused to another State
only if there is assurance or guarantee by the other State that the accused will be prosecuted
under the other State's criminal justice system. This assurance or guarantee springs from the
principle of international law that it is “the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes.”
There is at present no “applicable” extradition law or treaty allowing the surrender to
the United States of U.S. nationals accused of crimes under RA 9851, specifically, Crimes
against International Humanitarian Law or War Crimes,2
_______________
2 Section 4 of RA 9851 provides:
Section 4. War Crimes.—For the purpose of this Act, “war crimes” or “crimes against
International Humanitarian Law” means:
(a) In case of an international armed conflict , grave breaches of the Geneva
Conventions of 12 August 1949, namely, any of the following acts against persons or property
protected under provisions of the relevant Geneva Convention:
(1) Willful killing;
(2) Torture or inhuman treatment, including biological experiments;
(3) Willfully causing great suffering, or serious injury to body or health;
(4) Extensive destruction and appropriation of property not justified by military necessity
and carried out unlawfully and wantonly;
(5) Willfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial;
(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;
(7) Taking of hostages;
(8) Compelling a prisoner a prisoner of war or other protected person to serve in the
forces of a hostile power; and
(9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons.
(b) In case of a non-international armed conflict, serious violations of common Article 3 to
the four (4) Geneva Conventions of 12 August 1949, namely, any of the following acts
committed against persons taking no active part in the hostilities, including member of the
armed forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause;
(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and
torture;
(2) Committing outrages upon personal dignity, in particular, humiliating and degrading
treatment;
(3) Taking of hostages; and
(4) The passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all judicial guarantees which are
generally recognized as indispensable.
(c) Other serious violations of the laws and customs applicable in armed conflict, within
the established framework of international law, namely:
(1) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;
(2) Intentionally directing attacks against civilian objects, that is, object which are not
military objectives;
(3) Intentionally directing attacks against buildings, material, medical units and transport,
and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol
III in conformity with intentional law;
 (4) Intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations, as long as they are entitled to the protection given to civilians or
civilian objects under the international law of armed conflict;
(5) Launching an attack in the knowledge that such attack will cause incidental loss of life
or injury to civilians or damage to civilian objects or widespread, long-term and severe damage
to the natural environment which would be excessive in relation to the concrete and direct
military advantage anticipated;
302
Genocide,3 and Other Crimes
_______________
(6) Launching an attack against works or installations containing dangerous forces in the
knowledge that such attack will cause excessive loss of life, injury to civilians or damage to
civilian objects, and causing death or serious injury to body or health.
(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings
which are undefended and which are not military objectives, or making non-defended localities
or demilitarized zones the object of attack;
(8) Killing or wounding a person in the knowledge that he/she is hors de combat, including
a combatant who, having laid down his/her arms or no longer having means of defense, has
surrendered at discretion;
(9) Making improper use of a flag of truce, of the flag or the military insignia and uniform
of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva
Conventions or other protective signs under International Humanitarian Law, resulting in death,
serious personal injury or capture;
(10) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the sick and
wounded are collected, provided they are not military objectives. In case of doubt whether such
building or place has been used to make an effective contribution to military action, it shall be
presumed not to be so used;
(11) Subjecting persons who are in the power of an adverse party to physical mutilation or
to medical or scientific experiments of any kind, or to removal of tissue or organs for
transplantation, which are neither justified by the medical, dental or hospital treatment of the
person concerned nor carried out in his/her interest, and which cause death to or seriously
endanger the health of such person or persons;
(12) Killing, wounding or capturing an adversary by resort to perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy’s property unless such destruction or seizure is
imperatively demanded by the necessities of war;
(15) Pillaging a town or place, even when taken by assault;
(16) Ordering the displacement of the civilian population for reasons related to the conflict,
unless the security of the civilians involved or imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer of all or parts of the
population of the occupied territory within or outside this territory;
(18) Committing outrages upon personal dignity, in particular, humiliating and degrading
treatment;
(19) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva
Conventions or a serious violation of common Article 3 to the Geneva Conventions;
(20) Utilizing the presence of a civilian or other protected person to render certain points,
areas or military forces immune from military operations;
(21) Intentionally using starvation of civilians as a method of warfare by depriving them of
objects indispensable to their survival, including willfully impeding relief supplies as provided for
under the Geneva Conventions and their Additional Protocols;
(22) In an international armed conflict, compelling the nationals of the hostile party to take
part in the operations of war directed against their own country, even if they were in the
belligerent’s service before the commencement of the war;
(23) In an international armed conflict, declaring abolished, suspended or inadmissible in
a court of law the rights and actions of the nationals of the hostile party;
(24) Committing any of the following acts:
(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the
national armed forces;
(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into
an armed force or group other than the national armed forces; and
(iii) Using children under the age of eighteen (18) years to participate actively in hostilities;
and
(25) Employing means of warfare which are prohibited under international law, such as:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or
devices;
(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard
envelopes which do not entirely cover the core or are pierced with incisions; and
(iv) Weapons, projectiles and material and methods of warfare which are of the nature to
cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict.
xxxx
3 Section 5 of RA 9851 provides:
Section 5. Genocide.—(a) For the purpose of this Act, “genocide” means any of the
following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social
or any other similar stable and permanent group as such:
(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the group;
303
against Humanity.4
The RP-US Extradition Treaty cannot be considered an applicable extradition law or treaty.
Paragraph 1, Article 2 of the RP-US Extradition Treaty provides: “An offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties xxx.”5
The rule in the United States is that a person cannot be tried in the federal courts for an
international crime unless the U.S. Congress adopts a law defining and punishing the
_______________
(3) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(4) Imposing measures intended to prevent births within the group; and
(5) Forcibly transferring children of the group to another group.
(b) It shall be unlawful for any person to directly and publicly incite others to commit
genocide.
xxxx
4 Section 6 of RA 9851 provides:
Section 6. Other Crimes Against Humanity.—For the purpose of this Act, “other crimes
against humanity” means any of the following acts when committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
 (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
xxxx
5 Emphasis supplied.
304
offense.6 In Medellin v. Texas,7 the U.S. Supreme Court held that “while treaties ‘may
comprise international commitments ... they are not domestic law unless Congress has
either enacted implementing statutes or the treaty itself conveys an intention that it be
self-executing’ and is ratified on these terms.” The U.S. Congress has not enacted
legislation to implement the Geneva Conventions of 1949 (Geneva Conventions)8 which is one
of the foundations of the principles of International Humanitarian Law. While the U.S. Senate
has ratified the Geneva Conventions,9 the ratifi-
_______________
6 U.S. v. Coolidge, 14 U.S. 415, 1816 WL 1770 (U.S. Mass.) 4 L.Ed. 124, 1 Wheat. 415.
7 552 U.S. 491, 128 S. Ct. 1346 (2008).
8 The Geneva Conventions of 12 August 1949 consists of four Conventions or International
Agreements:
Convention I—for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field. (1864);
Convention II—for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (1906);
Convention III—Relative to the Treatment of Prisoners of War (1929); and
Convention IV—Relative to the Protection of Civilian Persons in Time of War (1949).
There are three Protocols to the Geneva Conventions:
Protocol I—Relating to the Protection of Victims of International Armed Conflicts, 8 June
1977;
Protocol II—Relating to the Protection of Victims of Non-International Armed Conflicts, 8
June 1977; and
Protocol III—Relating to the Adoption of an Additional Distinctive Emblem, 8 December
2005.
See http://www.icrc.org/web/eng/siteeng0.nsf/html/genevaconventions; last visited on 21
July 2010.
9 The U.S. ratified the Geneva Conventions of 1949 on 02 August 1955; the U.S. made
Reservations on 02 August 1955, 04 March 1975, and 31 December 1974.
Seehttp://www.icrc.org/ihl.nsf/NORM/D6B53F5B5D14F35AC1256402003F9920?Open
Document; last visited on 21 July 2010.
305
cation was not intended to make the Geneva Conventions self-executing under U.S. domestic
law.10
The United States has not ratified the Rome Statute of International Criminal Court (Rome
Statute). While the Philippines has also not ratified the Rome Statute, it has criminalized under
RA 9851 all the acts defined in the Rome Statute as Genocide, War Crimes and Other Crimes
against Humanity. There is no similar legislation in the United States.
Not all crimes punishable under the Rome Statute are considered crimes under U.S. laws.
A report11 based partly on interviews with representatives of the U.S. delegation in Rome stated:
“The domestic laws of the United States xxx do not cover every crime listed within the
jurisdiction of the [International Criminal] Court.”12 The report further explained
_______________
10 In Medellin v. Texas, supranote 7, the U.S. Supreme Court emphasized:
“This Court has long recognized the distinction between treaties that automatically have
effect as domestic law, and those that—while they constitute international law commitments—
do not by themselves function as binding federal law. xxx a treaty is ‘equivalent to an act of the
legislature,’ and hence self-executing, when it ‘operates of itself without the aid of any legislative
provision.’ x x x When, in contrast, ‘[treaty] stipulations are not self-executing they can only be
enforced pursuant to legislation to carry them into effect.’” (Citations omitted)
11 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International
Criminal Court,” The Henry L. Stimson Center, Report No. 55, March 2006; available
at http://www. stimson.org/fopo/pdf/US_Military_and_the_ICC_FINAL_website.pdf; last visited
on 02 August 2010.
This is a Report issued by the Henry Stimson Center which is described as a nonprofit,
nonpartisan institution devoted to enhancing international peace and security through a unique
combination of rigorous analysis and outreach. It has a stated mission of “urging pragmatic
steps toward the ideal objectives of international peace and security.” See
http://www.stimson.org/ about/?sn=AB2001110
512; last visited on 11 August 2010.
12 Id., at pp. 34-35.
306
the gap between the definitions of Genocide, War Crimes and Other Crimes against Humanity,
under the Rome Statute and under U.S. domestic laws, in this wise:13
ICC Statute in Contrast to the US Code
In conversations with both proponents and opponents of the Court, many suggested that while
the US has objected to the Court’s potential authority over US service members, what really lies
behind that concern is the recognition that those most vulnerable to the scrutiny of the Court are
notably higher up in the chain of command: the civilian and senior military leadership.
Legal experts, both in the military and outside, pointed out that there were more likely to be
“gaps” between the US Code and the Rome Statute than gaps with the Uniform Code of Military
Justice. After retirement, military personnel are not covered by the UCMJ, but instead would be
held accountable to the US Code, in particular Title 10 and Title 18. For some retired military
personnel, this was an area of some concern.
These individuals offered that former leaders, in particular the “Henry Kissingers of the
world,” are most at risk. Indeed, they stressed that as the main concern for the US: that
the Court will take up cases of former senior civilian leadership and military officials
who, acting under the laws of war, are no longer covered by the UCMJ and therefore,
potentially open to gaps in federal law where the US ability to assert complementarity is
nebulous. The fear is that they could be subject to ICC prosecution for actions they did
previously in uniform.
One legal scholar pointed out that several crimes defined within the Rome Statute do not
appear on the US books (e.g., apartheid, persecution, enslavement, and extermination.)
While similar laws exist, it would be within the competency of the Chief Prosecutor to
argue before the Pre-Trial Cham-
_______________
The “Court” refers to the International Criminal Court.
13 Id., at pp. 45-46.
307
ber14 that in fact, the US does not have laws to prosecute for the crimes that have been
committed. A similar situation arose in 1996, when Congressman Walter Jones (R-NC)
determined through a series of investigations that civilians serving overseas under a contract
with the US military were not covered under the UCMJ. It had been assumed that the US Code
gave US primacy over civilians serving in a military capacity, but instead it was discovered that if
a civilian serving with a military unit deployed overseas is accused of war crime, the foreign
state whose territory the crimes were committed in would in fact have primary jurisdiction to try
the case. Therefore, Rep. Jones authored the “War Crimes Act of 1996,” which was designed to
cover civilian serving in a military capacity.15
To ensure that no gaps exist between the US Code, the UCMJ, and the crimes within the
Court’s jurisdiction, a similar effort could be made. This process would need to identify
first where crimes exist in the Statute that are not covered in some context through Title
10 and Title 18 of the US Code and then draft legislation—modeled after the War Crimes
Act—designed to fill gaps. This would protect former US service members and senior
civilian leadership from ICC prosecution.
There is very little discussion today about the gaps in law. Scholars are aware of the potential
gaps and see this area as one where the US might be able to move forward to clarify legal
ambiguities that may exist, and to make corrections to US laws. This exercise would
_______________
14 The International Criminal Court has four organs: the Chambers, the Presidency, the
Registry and the Office of the Prosecutor. The Chambers is composed of 18 judges divided into
three divisions: the Pre-Trial Chamber, the Trial Chamber and the Appeals Chamber. [Id., at p.
22.]
15 Report’s Footnote: “He amended Article 18 section 2441 of the US Federal Code 2441.
US Code, Title 18, Part 1, Chapter 118, Section 2441, states... ῾(b) Circumstances—The
circumstances referred to in subsection (a) are that the person committing such war crime or the
victim of such war crime is a member of the Armed Forces of the United States or a national of
the United States (as defined in section 101 of the Immigration and Nationality Act).’” [Id., at p.
45.]
308
strengthen the US assertion of complementarity.” (Emphasis supplied)
The same report added, “At Rome, the U.S. was concerned with the definition of crimes,
especially the definition of war crimes and, to lesser extent, the definition of crimes against
humanity xxx;”16 that the crime of genocide was acceptable to the U.S. delegation; and that
throughout the negotiations, the U.S. position was to seek one hundred percent assurance that
U.S. service members would only be held accountable to U.S. systems of justice.17
With the existing gap between the crimes of Genocide, War Crimes and Other Crimes
against Humanity under the Rome Statute—now all criminalized in the Philippines under RA
9851 on the one hand, and U.S. domestic laws on the other, these crimes cannot be
considered “punishable under the laws in both Contracting Parties” as required under the
RP-US Extradition Treaty, and hence, cannot be considered as extraditable offenses under the
treaty. The crimes considered as Genocide, War Crimes, and Other Crimes against Humanity
under the Rome Statute and RA 9851 may not necessarily be considered as such crimes under
United States laws. Consequently, the RP-US Extradition Treaty does not qualify as
an “applicable” extradition law or treatyunder Section 17 of RA 9851, which allows the
Philippines to surrender to another state a person accused of Genocide, War Crimes and Other
Crimes against Humanity. In short, the Philippines cannot surrender to the United States a
U.S. national accused of any of these grave international crimes, when the United States
does not have the same or similar laws to prosecute such crimes.
_______________
16 Id., at p. 34.
17 Id., citing Interviews with representatives of the US delegation in Rome, 28 June 2005
and 6 October 2005, and comments from the Stimson Workshop.
309
Neither is the RP-US Non-Surrender Agreement an “applicable” extradition law or treaty as
required in Section 17 of RA 9851. Thus, the Agreement cannot be implemented by the
Philippine Government in the absence of an applicable extradition law or treaty allowing the
surrender to the United States of U.S. nationals accused of crimes under RA 9851.
If a U.S. national is under investigation or prosecution by an international tribunal for any
crime punishable under RA 9851, the Philippines has the option to surrender such U.S. national
to the international tribunal if the Philippines decides not to prosecute such U.S. national in the
Philippines. This option of the Philippine Government under Section 17 of RA 9851 is not
subject to the consent of the United States. Any derogation from Section 17, such as
requiring the consent of the United States before the Philippines can exercise
such option, requires an amendment to RA 9851 by way of either an extradition law or
treaty. Such an amendment cannot be embodied in a mere executive agreement or an
exchange of notes such as the assailed Agreement.
Section 17 of RA 9851 has clearly raised to a statutory level the surrender to another
State of persons accused of any crime under RA 9851. Any agreement in derogation of Section
17, such as the surrender to the U.S. of a U.S. national accused of an act punishable under RA
9851 but not punishable under U.S. domestic laws, or the non-surrender to an international
tribunal, without U.S. consent, of a U.S. national accused of a crime under RA 9851, cannot be
made in a mere executive agreement or an exchange of notes. Such surrender or non-
surrender, being contrary to Section 17 of RA 9851, can only be made in an amendatory
law, such as a subsequent extradition law or treaty.
Moreover, Section 17 of RA 9851 allows the surrender to another State only “if another
court x x x is alreadyconducting the investigation or undertaking the prosecution of such
crime.” This means that only if the other State
310
is already investigating or prosecuting the crime can the Philippines surrender the accused to
such other State. The RP-US Non-Surrender Agreement does not require that the United States
must already be investigating or prosecuting the crime before the Philippines can surrender the
accused. In fact, a U.S. national accused of a crime under RA 9851 may not even be
chargeable of such crime in the U.S. because the same act may not be a crime under U.S.
domestic laws. In such a case, the U.S. cannot even conduct an investigation of the accused,
much less prosecute him for the same act. Thus, the RP-US Non-Surrender Agreement violates
the condition in Section 17 of RA 9851 that the other State must already be investigating or
prosecuting the accused for the crime penalized under RA 9851 before the Philippines can
surrender such accused.
To repeat, the assailed Agreement prevents the Philippines, without the consent of the
United States, from surrendering to any international tribunal U.S. nationals accused of crimes
under RA 9851. Such consent is not required under RA 9851 which mandates that any non-
surrender without the consent of another State must be embodied in an extradition law or treaty.
The assailed Agreement also dispenses with the condition in Section 17 that before the
Philippines can surrender the accused to the United States, the accused must already be under
investigation or prosecution by the United States for the crime penalized under RA 9851, a
condition that may be impossible to fulfill because not all crimes under RA 9851 are recognized
as crimes in the United States. Thus, the Agreement violates Section 17 of RA 9851 as well
as existing municipal laws arising from the incorporation doctrine of the
Constitution. The Agreement cannot be embodied in a simple executive agreement or an
exchange of notes, but must be implemented through an extradition law or a treaty ratified with
the concurrence of at least two-thirds of all the members of the Senate.311
In international law, there is no difference between treaties and executive agreements on
their binding effect upon party states, as long as the negotiating functionaries have remained
within their powers.18 However, while the differences in nomenclature and form of various types
of international agreements are immaterial in international law, they have significance in the
municipal law of the parties.19 An example is the requirement of concurrence of the legislative
body with respect to treaties, whereas with respect to executive agreements, the head of State
may act alone to enforce such agreements.20
The 1987 Philippine Constitution provides: “No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the Members of the
Senate.”21 This express constitutional requirement makes treaties different from executive
agreements, which require no legislative concurrence.
An executive agreement can only implement, and not amend or repeal, an existing law. As I
have discussed in Suplico v. National Economic and Development Authority,22 although an
executive agreement has the force and effect of law, just like implementing rules of executive
agencies, it cannot amend or repeal prior laws, but must comply with the laws it
implements.23 An executive agreement, being an exclu-
_______________
18 Bayan v. Zamora, G.R. No. 138570, 10 October 2000, 342 SCRA 449, 489, citing
Richard J. Erickson, “The Making of Executive Agreements by the United States Department of
Defense: An Agenda for Progress,” 13 Boston U. Intl. L.J. 58 (1995).
19 Jorge R. Coquia and Miriam Defensor Santiago, Public International Law (1984), p.
585.
20 Id.
21 CONSTITUTION (1987), Art. VII, Sec. 21.
22 Dissenting Opinion, G.R. No. 178830, 14 July 2008, 558 SCRA 329, 360-391.
23 Id., at p. 376, citing Land Bank of the Philippines v. Court of Appeals, 319 Phil. 246; 249
SCRA 149 (1995).
312
sive act of the Executive branch, does not have the status of a municipal law. 24Acting alone, the
Executive has no law-making power; and while it has rule-making power, such power must be
exercised consistent with the law it seeks to implement.25
Thus, an executive agreement cannot amend or repeal a prior law, but must comply
with State policy embodied in an existing municipal law. 26This also means that an
executive agreement, which at the time of its execution complies with then existing law,
is deemed amended or repealed by a subsequent law inconsistent with such executive
agreement. Under no circumstance can a mere executive agreement prevail over a prior
or subsequent law inconsistent with such executive agreement.
This is clear from Article 7 of the Civil Code, which provides:
“Article 7. x x x
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution.” (Emphasis supplied)
An executive agreement like the assailed Agreement is an executive act of the
President. Under Article 7 of the Civil Code, an executive agreement contrary to a prior law is
void. Similarly, an executive agreement contrary to a subsequent law becomes void upon the
effectivity of such subsequent law. Since Article 7 of the Civil Code provides that “executive acts
shall be valid only when they are not contrary to the laws,” once an executive act becomes
contrary to law such executive act becomes void even if it was valid prior to the enactment of
such subsequent law.
_______________
24 Id.
25 Id.
26 Id.
313
A treaty, on the other hand, acquires the status of a municipal law upon ratification by the
Senate. Hence, a treaty may amend or repeal a prior law and vice-versa.27 Unlike an executive
agreement, a treaty may change state policy embodied in a prior and existing law.
In the United States, from where we adopted the concept of executive agreements, the
prevailing view is that executive agreements cannot alter existing law but must conform to
all statutory requirements.28 The U.S. State Department made a distinction between treaties
and executive agreements in this manner:
“x x x it may be desirable to point out here the well-recognized distinction between an
executive agreement and a treaty. In brief, it is that the former cannot alter the existing law
and must conform to all statutory enactments, whereas a treaty, if ratified by and with the
advice and consent of two-thirds of the Senate, as required by the Constitution, itself becomes
the supreme law of the land and takes precedence over any prior statutory
enactments.”29(Emphasis supplied)
The Agreement involved in this case is an executive agreement entered into viaan
exchange of notes.30 The parties
_______________
27 Id., citing Secretary of Justice v. Lantion, 379 Phil. 165; 322 SCRA 160 (2000).
28 Id., at p. 377.
29 Id., citing Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law, Yale Law
School), Treaties and Executive Agreements - A Reply, Yale Law Journal, June 1945, citing
Current Information Series, No. 1, 3 July 1934, quoted in 5 Hackworth, Digest of International
Law (1943) pp. 425-426.
30 E/N BFO-028-03; Paper on the RP-US Non-Surrender Agreement, Rollo, p. 72.
An “exchange of notes” is “an interchange of diplomatic notes between a diplomatic
representative and the minister of foreign affairs of the State to which he is accredited. xxx”
[Coquia and Santiago, supranote 3, p. 584.] It is a record of routine agreement, consisting of the
exchange of two or more documents, each of the
314
to the Agreement (RP and US) agree not to surrender each other’s nationals31 to any
international tribunal or to a third party for the purpose of surrendering to any international
tribunal, without the other’s consent, pursuant to the pronounced objective of “protect[ing]
Philippine and American personnel from frivolous and harassment suits that might be brought
against them in international tribunals.”32The Agreement amends existing Philippine State
policy as embodied in municipal law arising from generally accepted principles of
international law which form part of the law of the land. The Agreement also runs counter to
RA 9851 which criminalized wholesale all acts defined as international crimes in the Rome
Statute, an international treaty which the Philippines has signed but has still to ratify.33 The
Agreement frustrates the objectives of generally accepted principles of international law
embodied in the Rome Statute. Thus, considering its nature, the Agreement should be
embodied not in an executive agreement, but in a treaty which, under the Philippine
Constitution, shall be valid and effective only if concurred in by at least two-thirds of all the
members of the Senate.
The 1987 Philippine Constitution states as one of its principles, as follows:
_______________
parties being in the possession of the one signed by the representative of the other, and is
resorted to because of its speedy procedure, or to avoid the process of legislative approval.
[Ruben Agpalo, Public International Law (2006), p. 379.]
31 The Agreement actually uses the term “persons” which refer to “Government officials,
employees (including contractors), or military personnel or nationals of one Party.” See Rollo, p.
68.
32 Paper on the RP-US Non-Surrender Agreement, supra note 30.
33 The Philippines signed the Rome Statute of International Criminal Court on 28
December 2000, but has yet to ratify the same. See www.iccnow.org; last visited on 12 July
2010.
315
 “The Philippines x x x adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations.”34
This constitutional provision enunciates the doctrine of incorporation which mandates that
the Philippines is bound by generally accepted principles of international law which
automatically form part of Philippine law by operation of the Constitution. 35
In Kuroda v. Jalandoni,36this Court held that this constitutional provision “is not confined to
the recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.” The pertinent portion of Kuroda states:
“It cannot be denied that the rules and regulation of The Hague and Geneva
Conventions form part of and are wholly based on the generally accepted principles of
international law. x x x Such rule and principles, therefore, form part of the law of our
nation even if the Philippines was not a signatory to the conventions embodying them,
for our Constitution has been deliberately general and extensive in its scope and is not confined
to the recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.”37(Emphasis supplied)
Hence, generally accepted principles of international law form part of Philippine laws even if
they do not derive from treaty obligations of the Philippines. 38
_______________
34 CONSTITUTION (1987), Art. II, Sec. 2.
35 Agpalo, supra note 30, p. 421.
36 83 Phil. 171, 178 (1949).
37 Id.
38 Mijares v. Ranada, G.R. No. 139325, 12 April 2005, 455 SCRA 397, 421 citing H.
Thirlway, “The Sources of International Law,” International Law (ed. by M. Evans, 1st ed, 2003),
p. 124.
316
Generally accepted principles of international law, as referred to in the Constitution, include
customary international law.39 Customary international law is one of the primary sources of
international law under Article 38 of the Statute of the International Court of
Justice.40 Customary international law consists of acts which, by repetition of States of similar
international acts for a number of years, occur out of a sense of obligation, and taken by a
significant number of States.41 It is based on custom, which is a clear and continuous habit of
doing certain actions, which has grown under the aegis of the conviction that these actions are,
according to international law, obligatory or right.42 Thus, customary international law requires
the concurrence of two elements: “[1] the established, wide-spread, and consistent practice on
the part of the States; and [2] a psychological element known as opinion juris sive
necessitatis (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is ren-
_______________
39 Jovito Salonga and Pedro Yap, Public International Law, 5th ed. (1992), p. 12.
40 Article 38 of the Statute of International Court of Justice reads:
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
xxxx
41 Agpalo, supra note 30, p. 6.
42 Id., citing Oppenheimer’s International Law, 9th ed., p. 27.
317
dered obligatory by the existence of a rule of law requiring it.”43
Some customary international laws have been affirmed and embodied in treaties and
conventions. A treaty constitutes evidence of customary law if it is declaratory of customary law,
or if it is intended to codify customary law. In such a case, even a State not party to the
treaty would be bound thereby. 44 A treaty which is merely a formal expression of
customary international law is enforceable on all States because of their membership in
the family of nations.45 For instance, the Vienna Convention on Consular Relations is binding
even on non-party States because the provisions of the Convention are mostly codified rules of
customary international law binding on all States even before their codification into the Vienna
Convention.46Another example is the Law of the Sea, which consists mostly of codified rules of
customary international law, which have been universally observed even before the Law of the
Sea was ratified by participating States.47
Corollarily, treaties may become the basis of customary international law. While States
which are not parties to treaties or international agreements are not bound thereby, such
agreements, if widely accepted for years by many States, may transform into customary
international laws, in which case, they bind even non-signatory States.48
In Republic v. Sandiganbayan,49 this Court held that even in the absence of the
Constitution,50 generally accepted prin-
_______________
43 Id., at p. 7, citing Mijares v. Ranada, supra note 38.
44 Isagani Cruz, International Law (1998), p. 23.
45 Id., at p. 175.
46 Agpalo, supra note 30, p. 9.
47 Id.
48 Id., at p. 6.
49 G.R. No. 104768, 23 July 2003, 407 SCRA 10, 51, 56-57.
50 The 1973 Philippine Constitution also provides for the Doctrine of Incorporation, to wit:
318
ciples of international law remain part of the laws of the Philippines. During the interregnum, or
the period after the actual takeover of power by the revolutionary government in the Philippines,
following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before
the adoption of the Provisional Constitution), the 1973 Philippine Constitution was abrogated
and there was no municipal law higher than the directives and orders of the revolutionary
government. Nevertheless, this Court ruled that even during this period, the provisions of the
International Covenant on Civil and Political Rights and the Universal Declaration of Human
Rights, to which the Philippines is a signatory, remained in effect in the country. The Covenant
and Declaration are based on generally accepted principles of international law which are
applicable in the Philippines even in the absence of a constitution, as during the interregnum.
Consequently, applying the provisions of the Covenant and the Declaration, the Filipino people
continued to enjoy almost the same rights found in the Bill of Rights despite the abrogation of
the 1973 Constitution.
The Rome Statute of the International Criminal Court was adopted by 120 members of the
United Nations (UN) on 17 July 1998.51 It entered into force on 1 July 2002, after 60 States
became party to the Statute through ratification or accession. 52 The adoption of the Rome
Statute fulfilled the international community’s long-time dream of creating a
_______________
Article II
 Declaration of Principles and State Policies
xxxx
Section 3. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
51 http://www.un.org/News/facts/iccfact.htm; last visited on 1 November 2010.
52 Id.
319
permanent international tribunal to try serious international crimes. The Rome Statute, which
established an international criminal court and formally declared genocide, war crimes and other
crimes against humanity as serious international crimes, codified generally accepted
principles of international law, including customary international laws. The principles of
law embodied in the Rome Statute were already generally accepted principles of international
law even prior to the adoption of the Statute. Subsequently, the Rome Statute itself has been
widely accepted and, as of November 2010, it has been ratified by 114 states, 113 of which are
members of the UN.53
There are at present 192 members of the UN. Since 113 member states have already
ratified the Rome Statute, more than a majority of all the UN members have now adopted the
Rome Statute as part of their municipal laws. Thus, the Rome Statute itself is generally
accepted by the community of nations as constituting a body of generally accepted principles of
international law. The principles of law found in the Rome Statute constitute generally
accepted principles of international law enforceable in the Philippines under the
Philippine Constitution.The principles of law embodied in the Rome Statute are binding on the
Philippines even if the Statute has yet to be ratified by the Philippine Senate. In short, the
principles of law enunciated in the Rome Statute are now part of Philippine domestic law
pursuant to Section 2, Article II of the 1987 Philippine Constitution.
Article 89(1) of the Rome Statute provides as follows:
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the
material supporting the request outlined in article 91, to any State on the territory of which that
person
_______________
53 See http://www.un.org/en/members/index.shtml and http://www.icc-cpi.int/Menus/ASP/
states+parties; last visited on 1 November 2010.
320
may be found and shall request the cooperation of that State in the arrest and surrender of such
a person. States Parties shall, in accordance with the provisions of this Part and the procedure
under their national law, comply with requests for arrest and surrender.
xxxx
It is a principle of international law that a person accused of genocide, war crimes
and other crimes against humanity shall be prosecuted by the international community.
A State where such a person may be found has the primary jurisdiction to prosecute
such person, regardless of nationality and where the crime was committed. However, if a
State does not exercise such primary jurisdiction, then such State has the obligation to
turn over the accused to the international tribunal vested with jurisdiction to try such
person. This principle has been codified in Section 2(e) and Section 17 of RA 9851.
Moreover, Section 15 of RA 9851 has expressly adopted “[r]elevant and applicable
international human rights instruments” as sources of international law in the application and
interpretation of RA 9851, thus:
“Section 15. Applicability of International Law.—In the application and interpretation of this
Act, Philippine courts shall be guided by the following sources:
(a) x x x
xxx
(e) The rules and principles of customary international law;
xxx
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the Republic
of the Philippines; and
x x x.” (Emphasis supplied)
The Rome Statute is the most relevant and applicable international human rights instrument
in the application and
321
interpretation of RA 9851. Section 15(g) of RA 9851 authorizes the use of the Rome Statute as
a source of international law even though the Philippines is not a party to the Rome Statute.
Section 15(g) does not require ratification by the Philippines to such relevant and applicable
international human rights instruments. International human rights instruments to which the
Philippines is a party are governed by Section 15(h), referring to treaties or conventions “ratified
or acceded to” by the Philippines, which constitute a different category of sources of
international law under Section 15 of RA 9851. Thus, Section 15(g) and Section 15(h) refer to
different instruments, the former to international human rights instruments to which the
Philippines is not a party, and the latter to international human rights instruments to which the
Philippines is a party. By mandate of Section 15 of RA 9851, both categories of instruments are
sources of international law in the application and interpretation of RA 9851.
However, paragraph 2 of the assailed RP-US Non-Surrender Agreement provides as
follows:
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.
Clearly, the Agreement is in derogation of Article 89(1) of the Rome Statute. While Article
98(2) of the Rome Statute, which states as follows:
2. The Court may not proceed with a request for surrender which would require the requested
State to act inconsistently with its obligations under international agreementspursuant to
which
322
the consent of a sending State is required to surrender a person of that State to the Court,
unless the Court can first obtain the cooperation of the sending State for the giving of consent
for the surrender.” (Emphasis supplied)
allows for derogation of Article 89(1) if there is an international agreementbetween States
allowing such derogation, such international agreement, being in derogation of an existing
municipal law insofar as the Philippines is concerned, must be embodied in a treaty and
ratified by the Philippine Senate. Article 98(2) does not ipso facto allow a derogation of Article
89(1), but requires a further act, that is, the execution of an international agreement. Since
such international agreement is in derogation of Article 89(1) of the Rome Statute and
Section 17 of RA 8951, such international agreement must be ratified by the Senate to
become valid and effective.
Incidentally, the RP-US Non-Surrender Agreement allows the Philippines to
surrender, even without U.S. consent, a U.S. national accused of a crime under RA 9851
provided that the surrender is made to an “international tribunal xxx established by the UN
Security Council.” The United States agrees to this because it has a veto power in the UN
Security Council, a blocking power which it does not have, and cannot have, in the International
Criminal Court.
The International Criminal Court created under the Rome Statute was designed to
complement the efforts of states to prosecute their own citizens domestically while ensuring that
those who violate international law would be brought to justice. 54 A state is given a chance to
exercise complementarity55
_______________
54 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International
Criminal Court,” The Henry L. Stimson Center, Report No. 55, supra note 11, pp. 21-22.
55 “Under the premise of complementarity, the primary jurisdiction for any case lies first
with the state’s national judicial systems.” [Id., at p. 35.]
323
by informing the ICC of its choice to investigate and prosecute its own nationals through its own
domestic courts.56 Thus, the State has the primary jurisdiction to investigate and prosecute its
own nationals in its custody who may have committed the grave international crimes specified in
the Rome Statute. Under the same precept, Article 98(2) of the Rome Statute allows the State
of the accused to act consistently with its obligations under international agreements, and the
ICC “may not proceed with a request for surrender” which would require such State to act
otherwise. The ICC steps in and assumes jurisdiction only if the State having primary jurisdiction
and custody of the accused refuses to fulfill its international duty to prosecute those responsible
for grave international crimes.
The United States has not ratified the Rome Statute, and instead, entered into bilateral non-
surrender agreements with countries, citing its ability to do so under Article 98(2) of the Rome
Statute.57 These agreements, also called Bilateral Im-
_______________
56 If the ICC Prosecutor believes that the crime committed is within the ICC’s discretion
and that investigations should be initiated, the Prosecutor must seek authorization from the Pre-
Trial Chamber, which is the judicial body charged with evaluating and commencing
investigations. If the Pre-Trial Chamber believes there is a “reasonable basis to proceed with an
investigation,” and the case “appears to fall within the jurisdiction of the Court,” the Prosecutor
must inform the states and parties involved. “xxx [A] state, whether or not a member of the ICC,
can exercise complementarity by informing the Court within one month of notification by the
Prosecutor, that it chooses to investigate the case and, if sufficient evidence exists, to prosecute
through its own national criminal justice systems. Under the Rome Statute, the Prosecutor must
defer to the state’s request to investigate and prosecute at that national level unless the Pre-
Trial Chamber determines that the state is unable or unwilling to exercise jurisdiction effectively
and decides to authorize the Prosecutor to investigate the claim. [Id., at pp. 24-25, citing the
Rome Statute, Articles 15(4), 18(1-3) and 19.]
57 Id., at p. 16.
324
munity Agreements (BIA),58were intended as “means [to provide] assurances that no U.S.
citizen would be handed over to the (International Criminal) Court for investigation and
prosecution of alleged crimes that fell within the Court’s jurisdiction. x x x”59 There is
currently an argument within the international community about the use of Article 98
agreements, as negotiated by the U.S. after the adoption of the Rome Statute, and whether
they should be recognized as having precedent over ICC’s authority. 60 When Article 98 was
originally included in the Rome Statute, it was intended to cover Status of Forces Agreements
(SOFAs) and Status of Missions Agreements (SOMAs),61which establish the responsibilities of a
nation sending troops to another country, as well as where jurisdiction lies between the U.S. and
the host government over criminal and civil issues involving the deployed personnel. 62However,
under the BIAs, the standard definition of “persons” covered is “current or former Government
officials, employees
_______________
58 Id., at p. 53.
59 Id., at p. 11.
As of May 2005, the U.S. Administration has signed bilateral agreements with 100
countries, 42 of which are states parties to the Rome Statute, in which they pledged not to turn
American citizens over to the Court. [Id., at pp. 13 and 53.]
60 Id., at p. 54.
61 Id., citing AMICC, “Bilateral Immunity Agreements,” available
at http://www.amicc.org/usinfo/ administration_policy_BIAs.html.
62 Id., citing Global Security, “Status of Forces Agreements,” available at
http://www.globalsecurity. org/military/facility/sofa.htm. SOFAs define the legal status of U.S.
personnel and property in the territory of another country. Their purpose is to set forth rights and
responsibilities between the U.S. and the host country on such matters as civil and criminal
jurisdiction, the wearing of the uniform, the carrying of arms, tax and customs relief, entry and
exit of personnel and property, and resolving damage claims. [Global Security, “Status of Forces
Agreements,” id.; last visited on 11 August 2010.]
325
(including contractors), or military personnel or nationals of one party.”63The Bush
Administration64 contends that “such bilateral non-surrender agreements are Article 98(2)
agreements and that all US citizens of whatever character are covered by any such agreement,
xxx [and this] US position on scope of the bilateral non-surrender agreements, namely that
it includes US citizens acting in their private capacity, ῾is legally supported by the text, the
negotiating record, and precedent.’ ”65 Meanwhile, international legal scholars and
members of the US JAG Corps involved in the drafting of the Rome Statute expressed
frustration with the “expansive use of Article 98 agreements to apply to all Americans,
not just those individuals usually covered in SOFAs and SOMAs.”66 There are even those
who contend that since the BIAs do not deal solely with the conduct of official business, rather,
they apply to a wide variety of persons who may be on the territory of either party for any
purpose at any time, then “the Rome Statute does not
_______________
63 David Scheffer, “Article 98(2) of the Rome Statute: America’s Original Intent,” pp. 344-
345; available at http://jicj.oxfordjournals.
org/cgi/reprint/3/2/333; last visited on 6 August 2010.
64 The administration of former U.S. President George W. Bush.
65 David Scheffer, “Article 98(2) of the Rome Statute: America’s Original
Intent,” supra note 63, pp. 344-345; citing “Proposed Text of Article 98 Agreements with the
United States,” July 2002, available at
http://www.iccnow.org/documents/otherissues/impunityart98/US
Article98Agreement/ Aug02.pdf; and L. Bloomfield,“The U.S. Government and the International
Criminal Court,” Remarks to the Parliamentarians for Global Action, Consultative Assembly of
Parliamentarians for the International criminal Court and the Rule of Law, New York, 12
September 2003, available at http://www.amicc.
org/docs/ Bolton11_3_03.pdf.
66 Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International
Criminal Court,” The Henry L. Stimson Center, Report No. 55, supra note 11, citing the Stimson
Workshop.
326
authorize these agreements and by adhering to them, the countries will violate their obligations
to the [ICC] under the Statute.”67 Regardless of these contentions, however, the ultimate judge
as to what agreement qualifies under Article 98(2) of the Rome Statute is the ICC itself. 68
The assailed RP-US Non-Surrender Agreement covers “officials, employees, military
personnel, and nationals.” Under the Agreement, the Philippines is not allowed, without U.S.
consent, to surrender to an international tribunal, including the ICC, U.S. nationals—whether
military personnel or plain civilians—accused of genocide, war crimes and other crimes against
humanity, that is, the crimes covered by the Rome Statute and RA 9851. Whether or not this
Agreement would be recognized by the ICC as an “international agreement” qualified under
Article 98(2) depends on the ICC itself. In the domestic sphere, however, the Agreement, being
in derogation of the generally accepted principles of international law embodied in Article 89(1)
of the Rome Statute, as well as being contrary to the provisions of Section 17 of RA 9851,
should be ratified by the Philippine Senate to be valid and effective.
In sum, any derogation from the generally accepted principles of international law
embodied in the Rome Statute, which principles have the status of municipal law in this country,
cannot be undertaken through a mere executive agreement because an executive agreement
cannot amend existing laws. A law or a treaty ratified by the Philippine Senate is necessary to
amend, for purposes of domestic law, a derogable principle of international law, such as Article
89(1) of the Rome Statute, which has the status of municipal law.

_______________

67 AMICC, “Bilateral Immunity Agreements,” supra note 61; last visited on 11 August
2010.
68 The determination would be done by the ICC’s Chamberscomprised of 18 judges.
[Victoria K. Holt and Elisabeth W. Dallas, “On Trial: The US Military and the International
Criminal Court,” The Henry L. Stimson Center, Report No. 55; supra note 11, pp. 54 and 22; see
also note 14.]
237
Likewise, any derogation from the surrender option of the Philippines under Section
17 of RA 9851 must be embodied in an applicable extradition law or treaty and not in a
mere executive agreement because such derogation violates RA 9851, which is superior
to, and prevails over, a prior executive agreement allowing such derogation. Under no
circumstance can a mere executive agreement prevail over a prior or subsequent law
inconsistent with such executive agreement.Thus, the RP-US Non-Surrender Agreement to
be valid and effective must be ratified by the Philippine Senate, and unless so ratified, the
Agreement is without force and effect.
Accordingly, I vote to GRANT the petition and to DECLARE the RP-US Non-Surrender
Agreement ineffective and unenforceable unless and until ratified by the Senate of the
Philippines.
Petition dismissed.
Note.—This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.
(Neri vs. Senate Committee on Accountability of Public Officers and Investigations, 564 SCRA
152 [2008])
——o0o——
 [No. L-2662. March 26, 1949]
SHIGENORI KURODA, petitioner, vs. MAJOR GENERAL RAFAEL JALANDONI, BRIGADIER GENERAL
CALIXTO DUQUE, COLONEL MARGARITO TORALBA, COLONEL IRENEO BUENCONSEJO, COLONEL
PEDRO TABUENA, MAJOR FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT,
respondents.
1.CONSTITUTIONAL LAW ; VALIDITY OF EXECUTIVE ORDER NO. 68 ESTABLISHING A NATIONAL W AR
CRIMES OFFICE.—Executive Order No. 68 which was issued by the President of the
Philippines on the 29th day of July, 1947, is valid and constitutional. Article 2 of our
Constitution provides in its section 3 that "The Philippines renounces war as an instrument
of national policy, and adopts the generally accepted principles of international law as part
of the law of the nation."
2.INTERNATIONAL LAW ; VIOLATORS OF THE LAWS AND CUSTOMS OF WAR, OF HUMANITY AND
CIVILIZATION, LIABILITY AND RESPONSIBILITY OF.—In accordance with the generally accepted
principles of international law of the present day, including the Hague Convention, the
Geneva Convention and significant precedents of international jurisprudence established by
the United Nations, all those persons, military or civilian, who have been guilty of planning,
preparing or waging a war of aggression and of the 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*
3.ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES.—In the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has acted in conformity with the
generally accepted principles and policies of international law which are part of our
Constitution.
4.CONSTITUTIONAL LAW ; POWER OF PRESIDENT AS COMMANDER IN CHIEF OF ARMED FORCES OF
THE PHILIPPINES.—The promulgation of said executive order is an exercise by the President
of his powers as Commander in Chief of all our armed forces.
172
5.ID. ; ID.—The President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war, namely, the trial and punishment of war criminals, through the
issuance and enforcement of Executive Order No. 68.
6.INTERNATIONAL LAW ; HAGUE AND GENEVA CONVENTIONS FORM PART OF THE LAW OF THE
PHILIPPINES; EVEN IF THE PHILIPPINES WAS NOT SIGNATORY THEREOF, PROVISIONS OF PHILIP-
PINE CONSTITUTION HAS BEEN COMPREHENSIVE TO THAT EFFECT.—The rules and regulations
of the Hague and Geneva Conventions form part of and are wholly based on the generally
accepted principles of international law. In fact, these rules and principles were accepted by
the two belligerent nations, the United States and Japan, who were signatories to the two
Conventions. Such rules and principles, therefore, form part of the law of our nation even if
the Philippines was not a signatory to the conventions embodying them, for our Constitution
has been deliberately general and extensive in its scope and is not confined to the
recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory.
7.ID.; RIGHTS AND OBLIGATIONS OF A NATION WERE NOT ERASED BY ASSUMPTION OF FULL
SOVEREIGNTY; RIGHT TO TRY AND PUNISH CRIMES THERETOFORE COMMITTED.—When the
crimes charged against petitioner were allegedly committed, the Philippines was under the
sovereignty of the United States, and thus we were equally bound together with the United
States and with Japan, to the rights and obligations contained in the treaties between the
belligerent countries. These rights and obligations were not erased by our assumption of
full sovereignty. If at all, our emergence as a free state entitles us to enforce the right, on
our own, of trying and punishing those who committed crimes against our people.
8.ID.; ID.; ID.—War crimes committed against our people and our government while we were a
Commonwealth, are triable and punishable by our present Republic.
9.MILITARY COMMISSION GOVERNED BY SPECIAL LAW .—Military Commission is a special military
tribunal governed by a special law and not by the Rules of Court which govern ordinary civil
courts.
10.MILITARY COMMISSION; COUNSEL APPEARING BEFORE IT NOT NECESSARILY A MEMBER OF THE
PHILIPPINE BAR.—There is nothing in Executive Order No. 68 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 fact, it is common in military tribunals
that counsel for the
173
parties are usually military personnel who are neither attorneys nor even possessed of legal
training.
11.ID.; TRIAL OF W AR CRIMES BEFORE PHILIPPINE COURTS; ALLOWANCE OF AMERICAN ATTORNEYS
TO REPRESENT UNITED STATES.—The appointment of the two American attorneys is not
violative of our national sovereignty. It is only fair and proper that the 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 sovereignty, it has not been by our government but by the
United States Government Which has yielded to us the trial and punishment of her
enemies. The least that we could do in the spirit of comity is to allow them representation in
said trials.
12.ID.; ID.; ID.—It is of common knowledge that the United States and its people have been
equally, if not more greatly, aggrieved by the crimes with which petitioner stands charged
before the Military Commission. It can be considered a privilege for our Republic that a
leader nation should submit the vindication of the honor of its citizens and its government to
a military tribunal of our country.
13.ID.; JURISDICTION; SUPREME COURT WILL NOT INTERFERE WITH DUE PROCESSES OF MILITARY
COMMISSION.—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 jurisdiction over the person of the petitioner by having said petitioner in its
custody; this court will not interfere with the due processes of such Military
Commission. Per Perfecto, J., dissenting:
14.ATTORNEYS AT LAW ; ALIENS CANNOT PRACTICE LAW .—It appearing that Attys. Hussey and
Port are aliens and have not been authorized by the Supreme Court to practice law, they
cannot appear as prosecutors in a case pending before the War Crimes Commission.
15.CONSTITUTIONAL LAW ; LEGISLATIVE POWER VESTED IN CONGRESS; EXCEPTION.—While there is
no express provision in the fundamental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to, the veto power of the President, to his power to
suspend the writ of habeas corpus, to place any part of the Philippines under martial law,
and to
174
the rule-making power expressly vested by the Constitution in the Supreme Court.
16.ID.; ID.; SCOPE OF POWERS OF DIFFERENT GOVERNMENTAL DEPARTMENTS.—Because the
powers vested by our Constitution to the several departments of the government are in the
nature of grants, not a recognition of pre-existing powers, no department of the government
may exercise any power or authority not expressly granted by the Constitution or by law by
virtue of express authority of the Constitution.
17.ID.; ID.; POWER OF PRESIDENT TO PROMULGATE EXECUTIVE ORDER DEFINING AND ALLOCATING
JURISDICTION FOR PROSECUTION OF WAR CRIMES ON MILITARY COMMISSIONS.—The provision
in Executive Order No. 68 (series of 1947) of the President of the Philippines, that persons
accused as war criminals shall be tried by military commissions, is clearly legislative in
nature and intends to confer upon military commissions jurisdiction to try all persons
charged with war crimes. But, the power to define and allocate jurisdiction for the
prosecution of persons accused of crimes is exclusively vested by the Constitution in
Congress.
18.ID.; ID.; POWER TO ESTABLISH GOVERNMENT OFFICE.—Executive Order No. 68 establishes a
National War Crimes Office; but, the power to establish government offices is essentially
legislative.
19.ID.; RULE-MAKING POWER OF SUPREME COURT; PRESIDENT HAS NO POWER, MUCH LESS
DELEGATE SUCH A POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT OF TRIALS.—
 Executive Order No. 68 provides rules of procedure for the conduct of trials before the War
Crimes Office. This provision on procedural subject constitutes a usurpation of the rule-
making power vested by the Constitution in the Supreme Court. It further authorizes military
commissions to adopt additional rules of procedure. If the President of the Philippines
cannot exercise the rulemaking power vested by the Constitution in the Supreme Court, he
cannot, with more reason, delegate that power to military commissions.
20.ID,; LEGISLATIVE POWER VESTED IN CONGRESS; USURPATION OF POWER TO APPROPRIATE
FUNDS.—Executive Order No. 68 appropriates funds for the expenses of the National War
Crimes Office. This constitutes another usurpation of legislative power, as the power to vote
appropriations belongs to Congress.
21.ID.; EMERGENCY POWERS OF PRESIDENT UNDER COMMONWEALTH ACTS NOS. 600, 620 AND
671.—Commonwealth Acts Nos. 600, 620 and 671, granting the President of the
Philippines emergency powers to promulgate rules and regulations during national
emergency has ceased to have effect since the liberation
175
of the Philippines, or, at latest, upon the surrender of Japan on September 2, 1945. The
absurdity of the contention that these emergency acts continued in effect even after the sur-
render of Japan cannot be gainsaid. Only a few months after liberation, and even before
the surrender of Japan, the Congress started to function normally. To let the hypothesis on
continuance prevail will result in the existence of two distinct, separate and independent
legislative organs—the Congress and the President of the Philippines. Should there be any
disagreement between Congress and the President, a possibility that no one can dispute,
the President may take advantage of the long recess of Congress (two-thirds of every year)
to repeal and overrule legislative enactments of Congress, and may set up a veritable
system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.
22.STATUTORY CONSTRUCTION; PRESUMPTION THAT LEGISLATIVE BODY DID NOT INTEND TO VIOLATE
CONSTITUTION.—It has never been the purpose of the National Assembly to extend the
delegation (embodied in Commonwealth Acts Nos. 600, 620 and 671) beyond the
emergency created by war, as to extend it farther would be violative of the express
provisions of the Constitution. We are of the opinion that there is no doubt on this question;
but, if there could still be any, the same should be resolved in favor of the presumption that
the National Assembly did not intend to violate the fundamental law.
23.CONSTITUTIONAL LAW ; DUE PROCESS AND EQUAL PROTECTION OF LAW .—Executive Order No.
68 violates the fundamental guarantees of due process and equal protection of the law,
because it permits the admission of many kinds of evidence by which no innocent person
can afford to get acquittal, and by which it is impossible to determine whether an accused is
guilt or not beyond all reasonable doubt.
ORIGINAL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the court.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr., Ricardo A. Arcilla, and S. Meville
Hussey for respondents.
MORAN, C. J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Commanding General of the
176
Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who
is now charged before a Military Commission convened by the Chief of Staff of the Armed
Forces of the Philippines, with having unlawfully disregarded and failed "to discharge his duties
as such commander to control the operations of members of his command, permitting them to
commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of
the Imperial Japanese Forces, in violation of the laws and customs of war"—comes before this
Court seeking to establish the illegality of Executive Order No. 68 of the President of the
Philippines; to enjoin and prohibit respondents Melville S. Hussey and Robert Port from par-
ticipating in the prosecution of petitioner's case before the Military Commission; and to
permanently prohibit respondents from proceeding with the case of petitioner.
In support of his case, petitioner tenders the following principal arguments:
First.—"That Executive Order No. 68 is illegal on the ground that it violates not only the
provisions of our constitutional law but also our local laws, to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and, therefore, petitioner is charged of 'crimes' not based on
law, national and international." Hence, petitioner argues—"That in view of the fact that this
commission has been empanelled by virtue of an unconstitutional law and an illegal order, this
commission is without jurisdiction to try hereing petitioner."
Second.—That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United States of America, of attorneys Melville Hussey and Robert
Port, who are not attorneys authorized by the Supreme Court to practice law in the Philippines,
is a diminution of our personality as an independent state, and their appointments as
prosecutors are a violation of our Constitution for the reason that they are not qualified to
practice law in the Philippines.
177
Third.—That Attorneys Hussey and Port have no personality as prosecutors, the United
States not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office and prescribing rules
and regulations governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th day of July, 1947. This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that—
"The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the nation."
In accordance with the generally accepted principles of international law of the present day,
including the Hague Convention, the Geneva Convention and significant precedents of
international jurisprudence established by the United Nations, all those persons, military or
civilian, who have been guilty of planning, preparing or waging a war of aggression and of the
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 Executive Order No. 68, the President of the Philippines
has acted in conformity with the generally accepted principles and policies of international law
which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers 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—
"War is not ended simply because hostilities have ceased. After cessation of armed
hostilities, incidents of war may remain pending which should be disposed of as in time of war.
'An important incident to a conduct of war is the adoption of measures by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measures those
enemies who in their attempt
_______________
¹75 Phil., 563.
178
to thwart or impede our military effort have violated the law of war/ (Ex parte Quirin, 317 U.
S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial and
punishment of war criminals is an aspect of waging war. And, in the language of a writer, a
military commission 'has jurisdiction so long as a technical state of war continues. This includes
the period of an armis* tice, or military occupation, up to the effective date of a treaty of peace,
and may extend beyond, by treaty agreement.’ (Cowles, Trial of War Criminals by Military
Tribunals, American Bar Association Journal, June, 1944.)"
 Consequently, the President as Commander in Chief is fully empowered to consummate
this unfinished aspect of war, namely, the trial and punishment of war criminals, through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner
for acts committed in violation of the Hague Convention and the Geneva Convention because
the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be
denied that the rules and regulations of the Hague and Geneva conventions form part of and
are wholly based on the generally accepted principles of international law. In fact, these rules
and principles were accepted by the two belligerent nations, the United States and Japan, who
were signatories to the two Conventions. Such rules and principles, therefore, form part of the
law of our nation even if the Philippines was not a signatory to the conventions embodying
them, for our Constitution has been deliberately general and extensive in its scope and is not
confined to the recognition of rules and principles of international law as contained in treaties to
which our government may have been or shall be a signatory.
Furthermore, when the crimes charged against petitioner were allegedly committed, the
Philippines was under the sovereignty of the United States, and thus we were equally bound
together with the United States and with Japan, to the rights and obligations contained in the
treaties between the belligerent countries. These rights and obliga-
179
tions were not erased by our assumption of full sovereignty. If at all, our emergence as a
free state entitles us to enforce the right, on our own, of trying and punishing those who
committed crimes against our people. In this connection, it is well to remember what we have
said in the case of Laurel vs. Misa (76 Phil, 372):
“* * * the change of our form of government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same government and 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 attorneys are
not qualified to practice law in the 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 jnilitary tribunal governed by
a special law and not by the Rules of Court which govern ordinary civil courts. It has already
been shown that Executive Order No. 68 which provides for the organization of such military
commissions is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commissions must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tri-
bunals that counsel for the parties are usually military personnel who are neither attorneys nor
even possessed of legal training.
Secondly, the appointment of the two American attorneys is not violative of our national
sovereignty. It is only fair and proper that the United States, which has submitted
180
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 sovereignty, it has not been by our government but by the United States
Government which has yielded to us the trial and punishment of her enemies. The least that we
could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United States is not a party in interest in the case, petitioner challenges
the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United States and its people have been equally, if not more greatly, aggrieved by the crimes
with which petitioner stands charged before the Military Commission. It can be considered a
privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and 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
jurisdiction over the person of the petitioner by having said petitioner in its custody, this Court
will not interfere with the due processes of such Military Commission.
For all the foregoing, the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor, and Reyes, J J., concur.
PERFECTO. J., dissenting:
A military commission was empaneled on December 1, 1948, to try Lt. Gen. Shigenori
Kuroda for violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme
Court to practice law, were appointed prosecutors representing the American CIC in the trial of
the case.
181
The commission was empaneled under the authority of Executive Order No. 68 of the
President of the Philippines, the validity of which is challenged by petitioner on constitutional
grounds. Petitioner has also challenged the personality of Attorneys Hussey and Port to appear
as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948, in the name of the
People of the Philippines as accusers.
We will consider briefly the challenge against the appearance of Attorneys Hussey and
Port. It appearing that they are aliens and have not been authorized by the Supreme Court to
practice law, there could not be any question that said persons cannot appear as prosecutors in
petitioner's case, as with such appearance they would be practicing law against the law.
Said violation vanishes, however, into insignificance at the side of the momentous
questions involved in the challenge against the validity of Executive Order No. 68. Said order is
challenged on several constitutional grounds. To get a clear idea of the questions raised, it is
necessary to read the whole context of said order which is reproduced as follows:
"Executive Order No. 68
"ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND
REGULATIONS GOVERNING THE TRIAL OF ACCUSED WAR CRIMINALS.
"I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by the
Constitution and laws of the Philippines, do hereby establish a National War Crimes Office
charged with the responsibility of accomplishing the speedy trial of all Japanese accused of war
crimes committed in the Philippines, and prescribe the rules and regulations governing such
trial.
"The National War Crimes Office is established within the Office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction, supervision and
control of the Judge Advocate General. It shall proceed to collect from all available sources
evidence of war crimes committed in the Philippines from the commencement of hostilities by
Japan in December, 1941,
182
maintain a record thereof, and bring about the prompt trial of the accused.
"The National War Crimes Office shall maintain direct liaison with the Legal Section,
General Headquarters, Supreme Commander for the Allied Powers, and shall exchange with
the said Office information and evidence of war crimes.
"The following rules and regulations shall govern the trial of persons accused as war
criminals:
"I. ESTABLISHMENT OF MILITARY COMMISSIONS
"(a) General.—Persons accused as war criminals shall be tried by military commissions to
be convened by, or under the authority of, the President of the Philippines.
"II. JURISDICTION
"(a) Over Persons.—The military commissions appointed hereunder shall have jurisdiction
over all persons charged with war crimes who are in the custody of the convening authority at
the time of the trial.
 "(b) Over Offenses.—The military commissions established hereunder shall have
jurisdiction over all offenses including, but not limited to, the following:
"(1) The planning, preparation, initiation or waging of a war of aggression or a war in
violation of international treaties, agreements or assurances, or participation in a common plan
or conspiracy for the accomplishment of any of the foregoing.
"(2) Violations of the laws or customs of war. Such violations shall include, but not be
limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian
population of or in occupied territory; murder or ill-treatment of prisoners of war or internees or
persons on the seas or elsewhere; improper treatment of hostages; plunder of public or private
property; wanton destruction of cities, towns or villages; or devastation not justified by military
necessity.
"(3) Murder, extermination, enslavement, deportation and other inhuman acts committed
against civilian populations before or during the war, or persecutions on political, racial or
religious grounds in execution of, or in connection with, any crime denned herein, whether or not
in violation of the local laws.
"III. MEMBERSHIP OF COMMISSIONS
"(a) Appointment.—The members of each military commission shall be appointed by the
President of the Philippines, or under authority delegated by him. Alternates may be appointed
by the convening authority. Such alternates shall attend all sessions of the
commission, and in case of illness or other incapacity of any principal member, an alternate
shall take the place of that member. Any vacancy among the members or alternates, occurring
after a trial has begun, may be filled by the convening authority, but the substance of all
proceedings had and evidence taken in that case shall be made known to the said new member
or alternate. This fact shall be announced by the president of the commission in open court.
"(b) Number of Members.—Each commission shall consist of not less than three (3)
members.
"(c) Qualifications.—The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not disqualified by
personal interest or prejudice, provided that no person shall be appointed to hear a case in
which he personally investigated, or wherein his presence as a witness is required. One
specially qualified member shall be designated as the law member whose ruling is final in so far
as concerns the commission on an objection to the admissibility of evidence offered during the
trial.
"(d) Voting.—Except as to the admissibility of evidence, all rulings and findings of the
Commission shall be by majority vote, except that conviction and sentence shall be by the
affirmative vote of not less than two-thirds (2/3) of the members present.
"(e) Presiding Member.—In the event that the convening authority does not name one of
the members as the presiding member, the senior officer among the members of the
Commission present shall preside.
"IV. PROSECUTORS
"(a) Appointment.—The convening authority shall designate one or more persons to
conduct the prosecution before each commission.
"(b) Duties.—The duties of the prosecutors are:
"(1) To prepare and present charges and specifications for reference to a commission.
"(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.
"V. POWERS AND PROCEDURE OF COMMISSIONS
"(a) Conduct of the Trial.—A Commission shall:
"(1) Confine each trial strictly to a fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or
interference.
"(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor.
"(3) Hold public sessions except when otherwise decided by the commission.
184
"(4) Hold each session at such time and place as it shall determine, or as may be directed
by the convening authority.
"(b) Rights of the Accused.—The accused shall be entitled:
"(1) To have in advance of the trial a copy of the charges and specifications clearly worded
so as to apprise the accused of each offense charged.
"(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
"(3) To testify in his own behalf and have his counsel present relevant evidence at the trial
in support of his defense, and cross-examine each adverse witness who personally appears
before the commission.
"(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.
"(c) Witnesses.—The Commission shall have power:
"(1) To summon witnesses and require their attendance and testimony; to administer oaths
or affirmations to witnesses and other persons and to question witnesses.
"(2) To require the production of documents and other evidentiary material.
"(3) To delegate to the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above.
"(4) To have evidence taken by a special commissioner appointed by the commission.
"(d) Evidence.
"(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have probative
value in the mind of a reasonable man. The commission shall apply the rules of evidence and
pleading set forth herein with the greatest liberality to achieve expeditious procedure. In
particular, and without limiting in any way the scope of the foregoing general rules, the following
evidence may be admitted:
"(a) Any document, irrespective of its classification, which appears to the commission to
have been signed or issued by any officer, department, agency or member of the armed forces
of any Government without proof of the signature or of the issuance of the document.
"(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member thereof, or by a doctor of medicine or a member of any
medical service personnel, or by any investigator or intelligence officer, or by any other person
whom the commission considers as possessing knowledge of the matters contained in the
report.
"(c). Affidavits, depositions or other signed statements.
"(d) Any diary, letter or other document, including sworn or unsworn statements, appearing
to the commission to contain information relating to the charge.
"(e) A copy of any document or other secondary evidence of the contents, if the original is
not immediately available.
"(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military or
other agencies of any of the United Nations.
"(3) A commission may require the prosecution and the defense to make a preliminary offer
of proof, whereupon the commission may rule in advance on the admissibility of such evidence.
"(4) The official position of the accused shall not absolve him from responsibility, nor be
considered in mitigation of punishment. Further, action pursuant to an order of the accused's
superior, or of his Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so requires.
"(5) All purported confessions or statements of the accused shall be admissible in evidence
without any showing that they were voluntarily made. If it is shown that such confession or
statement was procured by means which the commission believes to have been of such a
character that they may have caused the accused to make a false statement, the commission
may strike out or disregard any such portion thereof as was so procured.
"(e) Trial Procedure.—The proceedings of each trial shall be conducted substantially as
follows, unless modified by the commission to suit the particular circumstances:
"(1) Each charge and specification shall be read, or its substance stated, in open court.
"(2) The presiding member shall ask each accused whether he pleads 'Guilty' or 'Not guilty.'
 "(3) The prosecution shall make its opening statement.
"(4) The presiding member may, at this or any other time, require the prosecutor to state
what evidence he proposes to submit to the commission and the commission thereupon may
rule upon the admissibility of such evidence.
"(5) The witnesses and other evidence for the prosecution shall be heard or presented. At
the close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether the evidence before the commission supports the
charges against the accused. The commission may defer action on any such motion and permit
or require the prosecution to reopen its case and produce any further available evidence.
186
"(6) The defense may make an opening statement prior to presenting its case. The
presiding member may, at this or any other time, require the defense to state what evidence it
proposes to submit to the commission, where upon the commission may rule upon the
admissibility of such evidence.
"(7) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
"(8) The defense, and thereafter the prosecution, shall address the commission.
"(9) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence, if any. The commission may state the reasons on which judgment is based.
"(f) Record of Proceedings.—Each commission shall make a separate record of its
proceedings in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel. The
commission shall be responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the convening authority as
soon as possible after the trial.
"(g) Sentence.—The commission may sentence an accused, upon conviction, to death by
hanging or shooting, imprisonment for life or for any less term, fine, or such other punishment as
the commission shall determine to be proper.
"(h) Approval of Sentence.—No sentence of a military commission shall be carried into
effect until approved by the Chief of Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the Philippines.
For the purpose of his review, the Chief of Staff shall create a Board of Review to be composed
of not more than three officers none of whom shall be on duty with or assigned to the Judge
Advocate General's Office. The Chief of Staff shall have the authority to approve, mitigate, remit
in whole or in part, commute, suspend, reduce or otherwise alter the sentence imposed, or
(without prejudice to the accused) remand the case for rehearing before a new military com-
mission; but he shall not have authority to increase the severity of the sentence. Except as
herein otherwise provided, the judgment and sentence of a commission shall be final and not
subject to review by any other tribunal.
"VI. RULE-MAKING POWER
"Supplementary Rules and Forms.—Each commission shall adopt rules and forms to
govern its procedure, not inconsistent with the
187
provisions of this Order, or such rules and forms as may be prescribed by the convening
authority or by the President of the Philippines.
"VII. The amount of seven hundred thousand pesos is hereby set aside out of the
appropriations for the Army of the Philippines for use by the National War Crimes Office in the
accomplishment of its mission as hereinabove set forth, and shall be expended in accordance
with the recommendations of the Judge Advocate General as approved by the President. The
buildings, fixtures, installations, messing, and billeting equipment and other property heretofore
used by the Legal Section, Manila Branch, of the General Headquarters, Supreme Commander
for the Allied Powers, which will be turned over by the United States Army to the Philippine
Government through the Foreign Liquidation Commission and the Surplus Property Commission
are hereby specifically reserved for use of the National War Crimes Office*
"Executive Order No. 64, dated August 16,1945, is hereby repealed.
"Done in the City of Manila, this 29th day of July, in the year of Our Lord, nineteen hundred
and forty-seven, and of the Independence of the Philippines, the second.
"Manuel Roxas "President of the Philippines
"By the President:
"Emilio Abello
"Chief of the Executive Office"
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of legislative measure, without the benefit of
congressional enactment.
The first question that is thrust at our face, spearheading a group of other no less important
questions, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution.
The Constitution provides:
"The Legislative powers shall be vested in a Congress of the Philippines, which shall
consist of a Senate and a House of Representatives." (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of
legislative power by agencies other than Congress, a reading of the whole context of the
Constitution would dispel any doubt as to the con-
188
stitutional intent that the legislative power is to be exercised exclusively by Congress, subject
only to the veto power of the President of the Philippines, to the specific provisions which allow
the President of the Philippines to suspend the privileges of the writ of habeas curpus and to
place any part of the Philippines under martial law, and to the rule-making power expressly
vested by the Constitution in the Supreme Court.
There cannot be any question that the members of the Constitutional Convention were
believers in the tripartite system of government as originally enunciated by Aristotle, further
elaborated by Montesquieu and accepted and practiced by modern democracies, especially the
United States of America, whose Constitution, after which ours has been patterned, has
allocated the three powers of government—legislative, executive, judicial—to distinct and
separate departments of government.
Because the powers vested by our Constitution to the several departments of the
government are in the nature of grants, not a recognition of pre-existing powers, no department
of government may exercise any power or authority not expressly granted by the Constitution or
by law by virtue of express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office, and the power to
establish government office is essentially legislative.
The order provides that persons accused as war criminals shall be tried by military
commissions. Whether such a provision is substantive or adjective, it is clearly legislative in
nature. It confers upon military commissions jurisdiction to try all persons charged with war
crimes. The power to define and allocate jurisdiction for the prosecution of persons accused of
any crime is exclusively vested by the Constitution in Congress.
It provides rules of procedure for the conduct of trials. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by the Constitution in the Supreme
Court.
189
It authorizes military commissions to adopt additional rules of procedure. If the President of the
Philippines cannot exercise the rule-making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military commissions.
 It appropriates the sum of P700,000 for the expenses of the National War Crimes Office
established by the said Executive Order No. 68. This constitutes another usurpation of
legislative power as the power to vote appropriations belongs to Congress.
Executive Order No. 68, is, therefore, null and void, because, through it, the President of
the Philippines usurped powers expressly vested by the Constitution in Congress and in the
Supreme Court.
Challenged to show the constitutional or legal authority under which the President of the
Philippines issued Executive Order No. 68, respondents could not give any definite answer.
They attempted, however, to suggest that the President of the Philippines issued Executive
Order No. 68 under the emergency powers granted to him by Commonwealth Act No. 600, as
amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are
transcribed below:
"Commonwealth Act No. 600
"AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULES AND REGULATIONS TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.
uBe it enacted by the National Assembly of the Philippines:
"Section 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary powers in order to safeguard the integrity of the Philippines and to insure the tran-
quility of its inhabitants, by suppressing espionage, lawlessness, and all subversive activities, by
preventing or relieving unemployment, by insuring to the people adequate shelter and clothing
and sufficient food supply, and by providing means for the speedy evacuation of the civilian
population, the establishment of an air protective service,
190
and the organization of volunteer guard units, and to adopt such other measures as he may
deem necessary for the interest of the public. To carry out this policy the President is authorized
to promulgate rules and regulations which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the Philippines, unless sooner
amended or repealed by the Congress of the Philippines. Such rules and regulations may
embrace the following objects: (1) to suppress espionage and other subversive activities; (2) to
require all able-bodied citizens (a) when not engaged in any lawful occupation, to engage in
farming or other productive activities or (b) to perform such services as may be necessary in the
public interest; (3) to take over farm lands in order to prevent failure or shortage of crops and
avert hunger and destitution; (4) to take over industrial establishments in order to insure
adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes
whenever necessary to prevent the unwarranted suspension of work in productive enterprises
or in the interest of national security; (6) to regulate the normal hours of work for wage-earning
and salaried employees in industrial or business undertakings of all kinds; (7) to insure an even
distribution of labor among the productive enterprises; (8) to commandeer ships and other
means of transportation in order to maintain, as much as possible, adequate and continued
transportation facilities; (9) to requisition and take over any public service or enterprise for use
or operation by the Government; (10) to regulate rents and the prices of articles or commodities
of prime necessity, both imported and locally produced or manufactured; and (11) to prevent,
locally or generally, scarcity, monopolization, hoarding, injurious speculations, and private
controls affecting the supply, distribution, and movement of foods, clothing, fuel, fertilizers,
chemicals, building materials, implements, machinery, and equipment required in agriculture
and industry, with power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.)
"Sec. 2. For the purpose of administering this Act and carrying out its objectives, the
President may designate any officer, without additional compensation, or any department,
bureau, office, or instrumentality of the National Government.
"Sec. 3. Any person, firm, or corporation found guilty of the violation of any provision of this
Act or of any of the rules or regulations promulgated by the President under the authority of
section one of this Act shall be punished by imprisonment of not more than ten years or by a
fine of not more than ten thousand pesos, or by both. If such violation is committed by a firm or
corporation, the manager, managing director, or person charged with the manage-
191
ment of the business of such firm, or corporation shall be criminally responsible therefor.
"Sec. 4. The President shall report to the National Assembly within the first ten days from
the date of the opening of its next regular session whatever action has been taken by him under
the authority herein granted.
"Sec. 5. To carry out the purposes of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five of Commonwealth
Act Numbered Four hundred and ninety-eight.
"Sec. 6. If any provision of this Act shall be declared by any court of competent jurisdiction
to be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
"Sec. 7. This Act shall take effect upon its approval.
"Approved, August 19, 1940."
"Commonwealth Act No. 671
"AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR
INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE
RULES AND REGULATIONS TO MEET SUCH EMERGENCY.
"Be it enacted by the National Assembly of the Philippines:
"Section 1. The existence of war between the United States and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.
"Sec. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate such rules
and regulations as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, departments, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the de-
termination of the order of precedence of the heads of the Executive Departments; (c) to create
new subdivisions, branches, departments, offices, agencies or instrumentalities of government
and to abolish any of those already existing; (d) to continue in force laws and appropriations
which would lapse or otherwise become inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e) to impose new taxes or to increase,
reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds
or otherwise, and to authorize the
192
expenditure of the proceeds thereof; (g) to authorize the National, provincial, city or
municipal governments to incur in overdrafts for purposes that he may approve; (h) to declare
the suspension of the collection of credits or the payment of debts; and (i) to exercise such other
powers as he may deem necessary to enable the Government to fulfill its responsibilities and to
maintain and enforce its authority.
"Sec. 3. The President of the Philippines shall as soon as practicable upon the convening of
the Congress of the Philippines report thereto all the rules and regulations promulgated by him
under the powers herein granted.
"Sec. 4. This Act shall take effect upon its approval, and the rules and regulations
promulgated hereunder shall be in force and effect until the Congress of the Philippines shall
otherwise provide.
"Approved, December 16, 1941."
The above Acts cannot validly be invoked, because they ceased to have any effect much
before Executive Order No. 68 was issued on July 29, 1947. Said Acts had elapsed upon the
liberation of the Philippines from the Japanese forces or, at the latest, when the surrender of
Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have
taken direct part in their consideration and passage, not only as one of the members of said
legislative body but as chairman of the Committee on Third Reading, popularly known as the
"Little Senate." We are, therefore, in a position to state that said measures were enacted by the
Second National Assembly for the purpose of facing the emergency of an impending war and of
the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We
approved said extraordinary measures, by which, under the exceptional circumstances then
prevailing, legislative powers were delegated to the President of the Philippines, by virtue of the
following provisions of the Constitution:
"In times of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to promulgate
rules and regulations to carry out a declared national policy." (Article VI, section 26.)
193

It has never been the purpose of the National Assembly to extend the delegation beyond
the emergency created by the war, as to extend it farther would be violative of the express
provisions of the Constitution. We are of the opinion that there is no doubt on this question; but
if there could still be any, the same should be resolved in favor of the presumption that the
National Assembly did not intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan cannot be gainsaid. Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress started to function normally. In
the hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even
after the Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two distinct, separate and independent legislative organs,—
Congress and the President of the Philippines—would have been and would continue enacting
laws, the former to enact laws of every nature including those of emergent character, and the
latter to enact laws, in the form of executive orders, under the so-called emergency powers. The
situation would be pregnant with dangers to peace and order, to the rights and liberties of the
people, and to Philippine democracy.
Should there be any disagreement between Congress and the President of the Philippines,
a possibility that no one can dispute, the President of the Philippines may take advantage of the
long recess of Congress (two-thirds of every year) to repeal and overrule legislative enactments
of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the
letter and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the
fundamental guarantees of the due process and equal protection of the law. It is especially so,
because it permits the admission of many kinds of evidence by which no innocent person can
afford
28660—13194
to get acquittal, and by which it is impossible to determine whether an accused is guilty or not
beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the
regulations governing the trial of twelve criminals, issued by General Douglas MacArthur,
Commander in Chief of the United States Armed Forces in Western Pacific, for the purpose of
trying, among others, Generals Yamashita and Homma. What we said in our concurring and
dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case,
L-129,1 and in our concurring and dissenting opinion to the resolution of January 23, 1946, in
disposing the Homma case, L-244,2 are perfectly applicable to the offensive rules of evidence
embodied in Executive Order No. 68. Said rules of evidence are repugnant to conscience as
under them no justice can be expected.
For all the foregoing, conformably with our position in the Yamasita and Homma cases, we
vote to declare Executive Order No. 68 null and void and to grant the petition.
Petition denied.

G.R. No. 76607. February 26, 1990.*
UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES,
petitioners, vs. HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial
Court, Angeles City, ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C.
DEL PILAR, respondents.
G.R. No. 79470. February 26, 1990.*
UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/ SGT. USAF, WILFREDO BELSA,
PETER ORASCION AND ROSE CARTALLA, petitioners, vs. HON. RODOLFO D. RO-DRIGO,
as Presiding Judge of Branch 7, Regional Trial Court (BAGUIO CITY), La Trinidad, Benguet and
FABIAN GENO-VE, respondents.
G.R. No. 80018. February 26, 1990.*
UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F. BOSTICK,
petitioners, vs. HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court,
Branch 66, Capas, Tarlac, and LUIS BAUTISTA, respondents.
G.R. No. 80258. February 26, 1990.*
UNITED STATES OF AMERICA, MAJOR GENERAL MI-CHAEL P. C. CARNS, AIC ERNEST
E. RIVENBURGH, AIC
_______________
*
EN BANC.
645
ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THO-MAS MITCHELL, SGT. WAYNE L.
BENJAMIN, ET AL., petitioners, vs. HON. CONCEPCION S. ALARCON VERGARA, as
Presiding Judge, Branch 62 REGIONAL TRIAL COURT, Ange-les City, and RICKY SANCHEZ,
FREDDIE SANCHEZ AKA FREDDIE RIVERA, EDWIN MARIANO, AKA JESSIE DOLORES
SANGALANG, ET AL., respondents.
Political Law; State Immunity from Suit; When the government enters into a contract, it is
deemed to have descended to the level of the other contracting party, and divested of its
sovereign immunity from suit with its implied consent.—The general law waiving the immunity of
the state from suit is found in Act No. 3083, under which the Philippine government “consents
and submits to be sued upon any moneyed claim involving liability arising from contract,
express or implied, which could serve as a basis of civil action between private parties.” In
Merritt v. Government of the Philippine Islands, a special law was passed to enable a person to
sue the government for an alleged tort. When the government enters into a contract, it is
deemed to have descended to the level of the other contracting party and divested of its
sovereign immunity from suit with its implied consent. Waiver is also implied when the
government files a complaint, thus opening itself to a counterclaim. The above rules are subject
to qualification. Express consent is effected only by the will of the legislature through the
medium of a duly enacted statute. We have held that not all contracts entered into by the
government will operate as a waiver of its non-suability; distinction must be made between its
sovereign and proprietary acts. As for the filing of a complaint by the government, suability will
result only where the government is claiming affirmative relief from the defendant.
Same; Same; Same; Rule on waiver, not applicable when the contract entered into
involves its sovereign or governmental capacity.— There is no question that the United States
of America, like any other state, will be deemed to have impliedly waived its non-suability if it
has entered into a contract in its proprietary or private capacity. It is only when the contract
involves its sovereign or governmental capacity that no such waiver may be implied. This was
our ruling in United States of America v. Ruiz, where the transaction in question dealt with the
improvement of the wharves in the naval installation at Subic Bay. As this was a clearly
governmental function, we held that the contract did not operate to divest the United States of
its sovereign immunity from suit.
646
Same; Same; Same; Officers acting in their official capacity cannot be directly impleaded
for acts imputable to their principal which has not given its consent to be sued.—It is clear from
a study of the records of G.R. No. 80018 that the individually-named petitioners therein were
acting in the exercise of their official functions when they conducted the buy-bust operation
against the complainant and thereafter testified against him at his trial. The said petitioners were
in fact connected with the Air Force Office of Special Investigators and were charged precisely
with the function of preventing the distribution, possession and use of prohibited drugs and
prosecuting those guilty of such acts. It cannot for a moment be imagined that they were acting
in their private or unofficial capacity when they apprehended and later testified against the
complainant. It follows that for discharging their duties as agents of the United States, they
cannot be directly im-pleaded for acts imputable to their principal, which has not given its
consent to be sued. As we observed in Sanders v. Veridiano: Given the official character of the
above-described letters, we have to conclude that the petitioners were, legally speaking, being
sued as officers of the United States government. As they have acted on behalf of that
government, and within the scope of their authority, it is that government, and not the petitioners
personally, that is responsible for their acts.
Same; Same; Express waiver of immunity cannot be made by a mere counsel of the
government but must be effected through a duly enacted statute.—We reject the conclusion of
the trial court that the answer filed by the special counsel of the Office of the Sheriff Judge
Advocate of Clark Air Base was a submission by the United States government to its
jurisdiction. As we noted in Republic v. Purisima, express waiver of immunity cannot be made
by a mere counsel of the government but must be effected through a duly-enacted statute.
Neither does such answer come under the implied forms of consent as earlier discussed.
Same; Same; By entering into an employment contract with Geno-ve in the discharge of
its proprietary functions, it impliedly divested itself of its sovereign immunity from suit.—From
these circumstances, the Court can assume that the restaurant services offered at the John Hay
Air Station partake of the nature of a business enterprise undertaken by the United States
government in its proprietary capacity. Such services are not extended to the American
servicemen for free as a perquisite of membership in the Armed Forces of the United States.
Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it
is well known that they are available to
647
the general public as well, including the tourists in Baguio City, many of whom make it a
point to visit John Hay for this reason. All persons availing themselves of this facility pay for the
privilege like all other customers as in ordinary restaurants. Although the prices are conced-edly
reasonable and relatively low, such services are undoubtedly operated for profit, as a
commercial and not a governmental activity. The consequence of this finding is that the
petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the damage
suit against them by Genove. Such defense will not prosper even if it be established that they
were acting as agents of the United States when they investigated and later dismissed Genove.
For that matter, not even the United States government itself can claim such immunity. The
reason is that by entering into the employment contract with Genove in the discharge of its
proprietary functions, it impliedly divested itself of its sovereign immunity from suit.
PETITION for certiorari and prohibition with preliminary injunction to review the decision of the
Regional Trial Court of Angeles City, Br. 62.
The facts are stated in the opinion of the Court.
Luna, Sison & Manas Law Office for petitioners.
CRUZ, J.:
These cases have been consolidated because they all involve the doctrine of state immunity.
The United States of America was not impleaded in the complaints below but has moved to
dismiss on the ground that they are in effect suits against it to which it has not consented. It is
now contesting the denial of its motions by the respondent judges.
In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for contracts for
barbering services in the said base.
 On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area Exchange,
U.S. Air Force, solicited bids for such contracts through its contracting officer, James F. Shaw.
Among those who submitted their bids were private respondents Roberto T. Valencia,
Emerenciana C. Tanglao, and Pablo C. del Pilar. Valencia had been a concessionaire inside
Clark for 34 years; del Pilar for 12 years; and Tanglao for 50 years.
648
The bidding was won by Ramon Dizon, over the objection of the private respondents, who
claimed that he had made a bid for four facilities, including the Civil Engineering Area, which
was not included in the invitation to bid.
The private respondents complained to the Philippine Area Exchange (PHAX). The latter,
through its representatives, petitioners Yvonne Reeves and Frederic M. Smouse, explained that
the Civil Engineering concession had not been awarded to Dizon as a result of the February 24,
1986 solicitation. Dizon was already operating this concession, then known as the NCO club
concession, and the expiration of the contract had been extended from June 30, 1986 to August
31, 1986. They further explained that the solicitation of the CE barbershop would be available
only by the end of June and the private respondents would be notified.
On June 30, 1986, the private respondents filed a complaint in the court below to compel
PHAX and the individual petitioners to cancel the award to defendant Dizon, to conduct a rebid-
ding for the barbershop concessions and to allow the private respondents by a writ of
preliminary injunction to continue operating the concessions pending litigation. 1
Upon the filing of the complaint, the respondent court issued an ex parte order directing the
individual petitioners to maintain the status quo.
On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the petition for
preliminary injunction on the ground that the action was in effect a suit against the United States
of America, which had not waived its non-suability. The individual defendants, as
officials/employees of the U.S. Air Force, were also immune from suit.
On the same date, July 22, 1986, the trial court denied the application for a writ of
preliminary injunction.
On October 10, 1988, the trial court denied the petitioners’ motion to dismiss, holding in
part as follows:
From the pleadings thus far presented to this Court by the parties, the Court’s attention is called
by the relationship between the plaintiffs as well as the defendants, including the US
Government, in
_______________
1
Civil Case No. 4772.
649
that prior to the bidding or solicitation in question, there was a binding contract between the
plaintiffs as well as the defendants, including the US Government. By virtue of said contract of
concession, it is the Court’s understanding that neither the US Government nor the herein
principal defendants would become the employer/s of the plaintiffs but that the latter are the
employers themselves of the barbers, etc. with the employer, the plaintiffs herein, remitting the
stipulated percentage of commissions to the Philippine Area Exchange. The same circumstance
would become in effect when the Philippine Area Exchange opened for bidding or solicitation
the questioned bar-ber shop concessions. To this extent, therefore, indeed a commercial
transaction has been entered, and for purposes of the said solicitation, would necessarily be
entered between the plaintiffs as well as the defendants.
The Court, further, is of the view that Article XVIII of the RP-US Bases Agreement does not
cover such kind of services falling under the concessionaireship, such as a barber shop
concession.2
On December 11, 1986, following the filing of the herein petition for certiorari and prohibition
with preliminary injunction, we issued a temporary restraining order against further proceedings
in the court below.3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against petitioners
Anthony Lamachia, Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook
in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been
ascertained after investigation, from the testimony of Belsa, Cartalla and Orascion, that Genove
had poured urine into the soup stock used in cooking the vegetables served to the club
customers. Lamachia, as club manager, suspended him and thereafter referred the case to a
board of arbitrators conformably to the collective bargaining agreement between the Center and
its employees. The board unanimously found him guilty and recommended his dismissal. This
was effected on March 5, 1986, by Col. David C. Kimball, Commander of the 3rd Combat
Support Group, PACAF Clark Air Force Base. Genove’s reaction was to file his complaint in the
Regional Trial Court of Baguio City against the individual
_______________
2
Annex “B”, Rollo, pp. 36-38.
3
Rollo, p. 88.
650
petitioners.4
On March 13, 1987, the defendants, joined by the United States of America, moved to
dismiss the complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed at
John Hay Air Station, was immune from suit for the acts done by him in his official capacity.
They argued that the suit was in effect against the United States, which had not given its
consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an order which read in
part:
It is the understanding of the Court, based on the allegations of the complaint—which have
been hypothetically admitted by defen-dants upon the filing of their motion to dismiss—that
although defen-dants acted initially in their official capacities, their going beyond what their
functions called for brought them out of the protective mantle of whatever immunities they may
have had in the beginning. Thus, the allegation that the acts complained of were “illegal,” done
with “extreme bad faith” and with “pre-conceived sinister plan to harass and finally dismiss” the
plaintiff, gains significance.5
The petitioners then came to this Court seeking certiorariand prohibition with preliminary
injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O’Donnell,
an extension of Clark Air Base, was arrested following a buy-bust operation conducted by the
individual petitioners herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the U.S. Air Force and special agents of the Air Force Office of Special Investigators
(AFOSI). On the basis of the sworn statements made by them, an information for violation of
R.A. 6425, otherwise known as the Dangerous Drugs Act, was filed against Bautista in the
Regional Trial Court of Tarlac. The above-named officers testified against him at his trial. As a
result of the filing of the charge, Bautista was dismissed from his employment. He then filed a
complaint for damages against the individual petitioners herein claiming that it was because of
their acts that he was
_______________
4
Civil Case No. 829-R(298).
5
Annex “A,” Rollo, p. 38.
651
removed.6
During the period for filing of the answer, Mariano Y. Navarro, a special counsel assigned
to the International Law Division, Office of the Staff Judge Advocate of Clark Air Base, entered a
special appearance for the defendants and moved for an extension within which to file an
“answer and/or other pleadings.” His reason was that the Attorney General of the United States
had not yet designated counsel to represent the defendants, who were being sued for their
official acts. Within the extended period, the defendants, without the assistance of counsel or
authority from the U.S. Department of Justice, filed their answer. They alleged therein as
affirmative defenses that they had only done their duty in the enforcement of the laws of the
Philippines inside the American bases pursuant to the RP-US Military Bases Agreement.
 On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained to represent
the defendants, filed with leave of court a motion to withdraw the answer and dismiss the
complaint. The ground invoked was that the defendants were acting in their official capacity
when they did the acts complained of and that the complaint against them was in effect a suit
against the United States without its consent.
The motion was denied by the respondent judge in his order dated September 11, 1987,
which held that the claimed immunity under the Military Bases Agreement covered only criminal
and not civil cases. Moreover, the defendants had come under the jurisdiction of the court when
they submitted their answer.7
Following the filing of the herein petition for certiorari and prohibition with preliminary
injunction, we issued on October 14, 1987, a temporary restraining order. 8
In G.R. No. 80258, a complaint for damages was filed by the private respondents against
the herein petitioners (except the United States of America), for injuries allegedly sustained by
the plaintiffs as a result of the acts of the defendants. 9There is a conflict of factual allegations
here. According to the plaintiffs,
_______________
6
Civil Case No. 115-C-87.
7
Annex “A,” Rollo, p. 33.
8
Rollo, p. 69.
9
Civil Case No. 4996.
652
the defendants beat them up, handcuffed them and unleashed dogs on them which bit them in
several parts of their bodies and caused extensive injuries to them. The defendants deny this
and claim the plaintiffs were arrested for theft and were bitten by the dogs because they were
struggling and resisting arrest. The defendants stress that the dogs were called off and the
plaintiffs were immediately taken to the medical center for treatment of their wounds.
In a motion to dismiss the complaint, the United States of America and the individually
named defendants argued that the suit was in effect a suit against the United States, which had
not given its consent to be sued. The defendants were also immune from suit under the RP-US
Bases Treaty for acts done by them in the performance of their official functions.
The motion to dismiss was denied by the trial court in its order dated August 10, 1987,
reading in part as follows:
The defendants certainly cannot correctly argue that they are immune from suit. The allegations,
of the complaint which is sought to be dismissed, had to be hypothetically admitted and
whatever ground the defendants may have, had to be ventilated during the trial of the case on
the merits. The complaint alleged criminal acts against the individually-named defendants and
from the nature of said acts it could not be said that they are Acts of State, for which immunity
should be invoked. If the Filipinos themselves are duty bound to respect, obey and submit
themselves to the laws of the country, with more reason, the members of the United States
Armed Forces who are being treated as guests of this country should respect, obey and submit
themselves to its laws.10
and so was the motion for reconsideration. The defendants submitted their answer as required
but subsequently filed their petiton for certiorari and prohibition with preliminary injunction with
this Court. We issued a temporary restraining order on October 27, 1987.11
II
The rule that a state may not be sued without its consent, now
_______________
10
Annex “A,” Rollo, p. 58.
11
Rollo, p. 181.
653
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted
principles of international law that we have adopted as part of the law of our land under Article
II, Section 2. This latter provision merely reiterates a policy earlier embodied in the 1935 and
1973 Constitutions and also intended to manifest our resolve to abide by the rules of the
international community.
Even without such affirmation, we would still be bound by the generally accepted principles
of international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as
a condition and consequence of its membership in the society of nations. Upon its admission to
such society, the state is automatically obligated to comply with these principles in its relations
with other states.
As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that “there can be no legal right against the authority which makes the
law on which the right depends.”12 There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the
added inhibition is expressed in the maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, “unduly vex the peace of nations.”13
While the doctrine appears to prohibit only suits against the state without its consent, it is
also applicable to complaints filed against officials of the state for acts allegedly performed by
them in the discharge of their duties. The rule is that if the judgment against such officials will
require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been formally impleaded. 14 In such a
_______________
12
Kawanakoa v. Polybank, 205 U.S. 349.
13
De Haber v. Queen of Portugal, 17 Q.B. 171.
14
Garcia v. Chief of Staff, 16 SCRA 120.
654
situation, the state may move to dismiss the complaint on the ground that it has been filed
without its consent.
The doctrine is sometimes derisively called “the royal prerogative of dishonesty” because of
the privilege it grants the state to defeat any legitimate claim against it by simply invoking its
non-suability. That is hardly fair, at least in democratic societies, for the state is not an unfeeling
tyrant unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute and does
not say the state may not be sued under any circumstance. On the contrary, the rule says that
the state may not be sued without its consent, which clearly imports that it may be sued if it
consents.
The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Consent is implied when the state
enters into a contract or it itself commences litigation.
The general law waiving the immunity of the state from suit is found in Act No. 3083, under
which the Philippine government “consents and submits to be sued upon any moneyed claim
involving liability arising from contract, express or implied, which could serve as a basis of civil
action between private parties.” In Merritt v. Government of the Philippine Islands, 15 a special
law was passed to enable a person to sue the government for an alleged tort. When the
government enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its implied
consent.16 Waiver is also implied when the government files a complaint, thus opening itself to a
counterclaim.17
The above rules are subject to qualification. Express consent is effected only by the will of
the legislature through the medium of a duly enacted statute. 18 We have held that not all
contracts entered into by the government will operate as a
_________________
 15
34 Phil. 311.
16
Santos v. Santos, 92 Phil. 281; Lyons v. United States of America, 104 Phil. 593.
17
Froilan v. Pan Oriental Shipping Co., G.R. No. 6060, September 30, 1950.
18
Republic v. Purisima, 78 SCRA 470.
655
waiver of its non-suability; distinction must be made between its sovereign and proprietary
acts.19 As for the filing of a complaint by the government, suability will result only where the
government is claiming affirmative relief from the defendant.20
In the case of the United States of America, the customary rule of international law on state
immunity is expressed with more specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:
It is mutually agreed that the United States shall have the rights, power and authority within the
bases which are necessary for the establishment, use, operation and defense thereof or
appropriate for the control thereof and all the rights, power and authority within the limits of the
territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to
provide access to them or appropriate for their control.
The petitioners also rely heavily on Baer v. Tizon,21along with several other decisions, to
support their position that they are not suable in the cases below, the United States not having
waived its sovereign immunity from suit. It is emphasized that in Baer, the Court held:
The invocation of the doctrine of immunity from suit of a foreign state without its consent is
appropriate. More specifically, insofar as alien armed forces is concerned, the starting point is
Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus petition for the release of
petitioners confined by American army authorities, Justice Hilado, speaking for the Court, cited
Coleman v. Tennessee, where it was explicitly declared: ‘It is well settled that a foreign army,
permitted to march through a friendly country or to be stationed in it, by permission of its
government or sovereign, is exempt from the civil and criminal jurisdiction of the place.’ Two
years later, in Tubb and Tedrow v. Griess, this Court relied on the ruling in Raquiza v. Bradford
and cited in support thereof excerpts from the works of the following authoritative writers: Vattel,
Wheaton, Hall, Lawrence, Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy
demands the clarification that after the conclusion of the Philippine-American
________________
19
United States of America v. Ruiz, 136 SCRA 487.
20
Lim v. Brownell, 107 Phil. 345.
21
57 SCRA 1.
656
Military Bases Agreement, the treaty provisions should control on such matter, the assumption
being that there was a manifestation of the submission to jurisdiction on the part of the foreign
power whenever appropriate. More to the point is Syquia v. Almeda Lopez, where plaintiffs as
lessors sued the Commanding General of the United States Army in the Philippines, seeking the
restoration to them of the apartment buildings they owned leased to the United States armed
forces stationed in the Manila area. A motion to dismiss on the ground of non-suability was filed
and upheld by respondent Judge. The matter was taken to this Court in a mandamus
proceeding. It failed. It was the ruling that respondent Judge acted correctly considering that the
‘action must be considered as one against the U.S. Government.’ The opinion of Justice
Montemayor continued: ‘It is clear that the courts of the Philippines including the Municipal
Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of
lack of jurisdiction was raised and interposed at the very beginning of the action. The U.S.
Government has not given its consent to the filing of this suit which is essentially against her,
though not in name. Moreover, this is not only a case of a citizen filing a suit against his own
Government without the latter’s consent but it is of a citizen filing an action against a foreign
government without said government’s consent, which renders more obvious the lack of
jurisdiction of the courts of his country. The principles of law behind this rule are so elementary
and of such general acceptance that we deem it unnecessary to cite authorities in support
thereof.’ Then came Marvel Building Corporation v. Philippine War Damage Commission, where
respondent, a United States Agency established to compensate damages suffered by the
Philippines during World War II was held as falling within the above doctrine as the suit against
it ‘would eventually be a charge against or financial liability of the United States Government
because x x x, the Commission has no funds of its own for the purpose of paying money
judgments.’ The Syquia ruling was again explicitly relied upon in Marquez Lim v. Nelson,
involving a complaint for the recovery of a motor launch, plus damages, the special defense
interposed being ‘that the vessel belonged to the United States Government, that the
defendants merely acted as agents of said Government, and that the United States Government
is therefore the real party in interest.’ So it was in Philippine Alien Property Administration v.
Castelo, where it was held that a suit against Alien Property Custodian and the Attorney
General of the United States involving vested property under the Trading with the Enemy Act is
in substance a suit against the United States. To the same effect is Parreno v. McGranery, as
the following excerpt from the opinion of Justice Tuazon clearly shows: ‘It is a widely accepted
principle of international law, which is
657
made a part of the law of the land (Article II, Section 3 of the Constitution), that a foreign state
may not be brought to suit before the courts of another state or its own courts without its
consent.’ Finally, there is Johnson v. Turner, an appeal by the defendant, then Commanding
General, Philippine Command (Air Force, with office at Clark Field) from a decision ordering the
return to plaintiff of the confiscated military payment certificates known as scrip money. In
reversing the lower court decision, this Tribunal, through Justice Montemayor, relied on Syquia
v. Almeda Lopez, explaining why it could not be sustained.
It bears stressing at this point that the above observations do not confer on the United States of
America a blanket immunity for all acts done by it or its agents in the Philippines. Neither may
the other petitioners claim that they are also insulated from suit in this country merely because
they have acted as agents of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state, will be deemed
to have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity that
no such waiver may be implied. This was our ruling in United States of America v. Ruiz, 22 where
the transaction in question dealt with the improvement of the wharves in the naval installation at
Subic Bay. As this was a clearly governmental function, we held that the contract did not
operate to divest the United States of its sovereign immunity from suit. In the words of Justice
Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principles of
independence and equality of States. However, the rules of International Law are not petrified;
they are constantly developing and evolving. And because the activities of states have
multiplied, it has been necessary to distinguish them—between sovereign and governmental
acts (jure imperii) and private, commercial and proprietary acts (jure gestionis).
________________
22
136 SCRA 487.
658
The result is that State immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the United Kingdom and other
states in Western Europe.
xxx
The restrictive application of State immunity is proper only when the proceedings arise out
of commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an individual
and can thus be deemed to have tacitly given its consent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the government
of the highest order; they are not utilized for nor dedicated to commercial or business purposes.
The other petitioners in the cases before us all aver they have acted in the discharge of their
official functions as officers or agents of the United States. However, this is a matter of
evidence. The charges against them may not be summarily dismissed on their mere assertion
that their acts are imputable to the United States of America, which has not given its consent to
be sued. In fact, the defendants are sought to be held answerable for personal torts in which the
United States itself is not involved. If found liable, they and they alone must satisfy the
judgment.
In Festejo v. Fernando,23 a bureau director, acting without any authority whatsoever,
appropriated private land and converted it into public irrigation ditches. Sued for the value of the
lots invalidly taken by him, he moved to dismiss the complaint on the ground that the suit was in
effect against the Philippine government, which had not given its consent to be sued. This Court
sustained the denial of the motion and held that the doctrine of state immunity was not
applicable. The director was being sued in his private capacity for a personal tort.
With these considerations in mind, we now proceed to resolve the cases at hand.
________________
23
50 O.G. 1556.
659
III
It is clear from a study of the records of G.R. No. 80018 that the individually-named petitioners
therein were acting in the exercise of their official functions when they conducted the buy-bust
operation against the complainant and thereafter testified against him at his trial. The said
petitioners were in fact connected with the Air Force Office of Special Investigators and were
charged precisely with the function of preventing the distribution, possession and use of
prohibited drugs and prosecuting those guilty of such acts. It cannot for a moment be imagined
that they were acting in their private or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their principal, which has
not given its consent to be sued. As we observed in Sanders v. Veridiano:24
Given the official character of the above-described letters, we have to conclude that the
petitioners were, legally speaking, being sued as officers of the United States government. As
they have acted on behalf of that government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for their acts.
The private respondent invokes Article 2180 of the Civil Code which holds the government liable
if it acts through a special agent. The argument, it would seem, is premised on the ground that
since the officers are designated “special agents,” the United States government should be
liable for their torts.
There seems to be a failure to distinguish between suability and liability and a
misconception that the two terms are synonymous. Suability depends on the consent of the
state to be sued, liability on the applicable law and the established facts. The circumstance that
a state is suable does not necessarily mean that it is liable; on the other hand, it can never be
held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that
the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that the
________________
24
162 SCRA 88.
660
defendant is liable.
The said article establishes a rule of liability, not suability. The government may be held
liable under this rule only if it first allows itself to be sued through any of the accepted forms of
consent.
Moreover, the agent performing his regular functions is not a special agent even if he is so
denominated, as in the case at bar. No less important, the said provision appears to regulate
only the relations of the local state with its inhabitants and, hence, applies only to the Philippine
government and not to foreign governments impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special counsel of the
Office of the Sheriff Judge Advocate of Clark Air Base was a submission by the United States
government to its jurisdiction. As we noted in Republic v. Purisima, 25express waiver of immunity
cannot be made by a mere counsel of the government but must be effected through a duly-
enacted statute. Neither does such answer come under the implied forms of consent as earlier
discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018were acting in
the discharge of their official functions, we hesitate to make the same conclusion in G.R. No.
80258. The contradictory factual allegations in this case deserve in our view a closer study of
what actually happened to the plaintiffs. The record is too meager to indicate if the defendants
were really discharging their official duties or had actually exceeded their authority when the
incident in question occurred. Lacking this information, this Court cannot directly decide this
case. The needed inquiry must first be made by the lower court so it may assess and resolve
the conflicting claims of the parties on the basis of the evidence that has yet to be presented at
the trial. Only after it shall have determined in what capacity the petitioners were acting at the
time of the incident in question will this Court determine, if still necessary, if the doctrine of state
immunity is applicable.
In G.R. No. 79470, private respondent Genove was employed as a cook in the Main Club
located at the U.S. Air Force Recreation Center, also known as the Open Mess Complex, at
________________
25
Supra.
661
John Hay Air Station. As manager of this complex, petitioner Lamachia is responsible for eleven
diversified activities generating an annual income of $2 million. Under his executive
management are three service restaurants, a cafeteria, a bakery, a Class VI store, a coffee and
pantry shop, a main cashier cage, an administrative office, and a decentralized warehouse
which maintains a stock level of $200,000.00 per month in resale items. He supervises 167
employees, one of whom was Genove, with whom the United States government has concluded
a collective bargaining agreement.
From these circumstances, the Court can assume that the restaurant services offered at the
John Hay Air Station partake of the nature of a business enterprise undertaken by the United
States government in its proprietary capacity. Such services are not extended to the American
servicemen for free as a perquisite of membership in the Armed Forces of the United States.
Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it
is well known that they are available to the general public as well, including the tourists in
Baguio City, many of whom make it a point to visit John Hay for this reason. All persons availing
themselves of this facility pay for the privilege like all other customers as in ordinary restaurants.
Although the prices are concededly reasonable and relatively low, such services are
undoubtedly operated for profit, as a commercial and not a governmental activity.
The consequence of this finding is that the petitioners cannot invoke the doctrine of state
immunity to justify the dismissal of the damage suit against them by Genove. Such defense will
not prosper even if it be established that they were acting as agents of the United States when
they investigated and later dismissed Genove. For that matter, not even the United States
government itself can claim such immunity. The reason is that by entering into the employment
contract with Genove in the discharge of its proprietary functions, it impliedly divested itself of its
sovereign immunity from suit.
But these considerations notwithstanding, we hold that the complaint against the petitioners
in the court below must still be dismissed. While suable, the petitioners are nevertheless not
liable. It is obvious that the claim for damages cannot be
662
allowed on the strength of the evidence before us, which we have carefully examined.
The dismissal of the private respondent was decided upon only after a thorough
investigation where it was established beyond doubt that he had polluted the soup stock with
urine. The investigation, in fact, did not stop there. Despite the definitive finding of Genove’s
guilt, the case was still referred to the board of arbitrators provided for in the collective Fernan (C.J.), Narvasa, Melencio-Herrera, Gutierrez,
bargaining agreement. This board unanimously affirmed the findings of the investigators and Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortés,Griño-
recommended Genove’s dismissal. There was nothing arbitrary about the proceedings. The Aquino, Medialdeaand Regalado, JJ., concur.
petitioners acted quite properly in terminating the private respondent’s employment for his In G.R. No. 76607, petition dismissed; G.R. No. 79470, petition granted; G.R. No. 80018,
unbelievably nauseating act. It is surprising that he should still have the temerity to file his petition granted; G.R. No. 80258,
complaint for damages after committing his utterly disgusting offense. 664
Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions petition dismissed.
granted by the United States government are commercial enterprises operated by private Note.—A direct suit against the State cannot be maintained without its consent. (Insurance
persons. They are not agencies of the United States Armed Forces nor are their facilities Company of North America vs. Republic, L-26532, August 30, 1967, 20 SCRA 1159; Fireman’s
demandable as a matter of right by the American servicemen. These establishments provide for Fund Insurance Co. vs. Maersk Line Far East Service, L-27189, March 28, 1969, 27 SCRA
the grooming needs of their customers and offer not only the basic haircut and shave (as 519; Rizal Surety & Insurance Co. vs. Customs Arrastre Service, L-25709, April 25, 1969, 27
required in most military organizations) but such other amenities as shampoo, massage, SCRA 1016.)
manicure and other similar indulgences. And all for a fee. Interestingly, one of the
concessionaires, private respondent Valencia, was even sent abroad to improve his tonsorial ——o0o——
business, presumably for the benefit of his customers. No less significantly, if not more so, all
the barbershop concessionaires are, under the terms of their contracts, required to remit to the
United States government fixed commissions in consideration of the exclusive concessions
granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the complaint filed by
the private respondents in the court below. The contracts in question being decidedly
commercial, the conclusion reached in the United States of America v. Ruiz case cannot be
applied here.
The Court would have directly resolved the claims against the defendants as we have done
in G.R. No. 79470, except for the paucity of the record in the case at hand. The evidence of the
663
alleged irregularity in the grant of the barbershop concessions is not before us. This means that,
as in G.R. No. 80258, the respondent court will have to receive that evidence first, so it can later
determine on the basis thereof if the plaintiffs are entitled to the relief they seek. Accordingly,
this case must also be remanded to the court below for further proceedings.

IV

There are a number of other cases now pending before us which also involve the question of
the immunity of the United States from the jurisdiction of the Philippines. This is cause for
regret, indeed, as they mar the traditional friendship between two countries long allied in the
cause of democracy. It is hoped that the so-called “irritants” in their relations will be resolved in
a spirit of mutual accommodation and respect, without the inconvenience and asperity of
litigation and always with justice to both parties.
WHEREFORE, after considering all the above premises, the Court hereby renders
judgment as follows:

1. 1.In G.R. No. 76607, the petition is DISMISSED and the respondent judge is directed
to proceed with the hearing and decision of Civil Case No. 4772. The temporary
restraining order dated December 11, 1986, is LIFTED.
2. 2.In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is
DISMISSED.
3. 3.In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is
DISMISSED. The temporary restraining order dated October 14, 1987, is made
permanent.
4. 4.In G.R. No. 80258, the petition is DISMISSED and the respondent court is directed
to proceed with the hearing and decision of Civil Case No. 4996. The temporary
restraining order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.

No. L-49112. February 2, 1979 *
LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land
Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of
National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister of Public Works,
Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as
Minister of Public Highways, respondents.
Constitutional Law; Police power construed.—The broad and expensive scope of the
police power, which was originally identified by Chief Justice Taney of the American Supreme
Court in an 1847 decision, as “nothing more or less than, the powers of government inherent in
every sovereignty” was stressed in the aforementioned case of Edu v. Ericta thus: “Justice
Laurel in the first leading decision after the Constitution came into force, Calalang v. Williams,
identified police power with state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare. Persons and property could thus ‘be
subjected to all kinds of restraints and burdens in order to secure the general comfort, health
and prosperity of the state.’ Shortly after independence in 1948; Primicias v. Fugoso reiterated
the doctrine, such a competence being referred to as ‘the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety, and general welfare of the
people.’ x x x The police power is thus a dynamic agency, suitably vague and far from precisely
defined, rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to insure communal peace, safety, good order, and welfare.”
Same; Due process; Letter of Instruction No. 229 requiring the installation of early
warning devices to vehicles is not repugnant to the due process clause. Conjectural claims of
petitioner as to number of nighttime vehicular collisions cannot be a basis for setting aside a
requirement of law that was promulgated after a careful study by the Executive Department.—
Nor did the Solicitor General, as he very
_______________
*
EN BANC
196
well could, rely solely on such rebutted presumption of validity. As was pointed out in his
Answer: “The President certainly had in his possession the necessary statistical information and
data at the time he issued said letter of instructions, and such factual foundation cannot be
defeated by petitioner’s naked assertion that early warning devices ‘are not too vital to the
prevention of nighttime vehicular accidents’ because allegedly only 390 or 1.5 per cent of the
supposed 26,000 motor vehicle accidents that occurred in 1976 involved rearend collisions (p.
12 of petition). Petitioner’s statistics is not backed up by demonstrable data on record. As aptly
stated by this Honorable Court: ‘Further: “It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute
or ordinance is void on its face, which is not the case here” ’ * * *. But even assuming the verity
of petitioner’s statistics, is that not reason enough to require the installation of early warning
devices to prevent another 390 rear-end collisions that could mean that death of 390 or more
Filipinos and the deaths that could, likewise result from head-on or frontal collisions with stalled
vehicles?” It is quite manifest then that the issuance of such Letter of Instruction is encased in
the armor of prior, careful study by the Executive Department. To set it aside for alleged
repugnancy to the due process clause is to give sanction to conjectural claims that exceeded
even the broadest permissible limits of a pleader’s well-known penchant for exaggeration.
Same; Same; The “early-warning device” requirement on vehicles is not expensive
redundancy. Said device is universally recognized.—The rather wild and fantastic nature of the
charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor
General thus: “Such early warning device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped with 1) ‘blinking lights in the fore
and aft of said motor vehicles,’ 2) ‘battery-powered blinking lights inside motor vehicles,’ 3)
‘built-in reflectorized tapes on front and rear bumpers of motor vehicles,’ or 4) ‘well-lighted two
(2) petroleum lamps (the Kinke) * * * because: Being universal among the signatory countries to
the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of
at least 400 meters, any motorist from this country or from any part of the world, who sees a
reflectorized rectangular early warning device installed on the roads, highways or expressways,
will conclude, without thinking, that somewhere along the travelled portion of that road, highway,
or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs
or endangers passing traffic. On the other
197
hand, a motorist who sees any of the aforementioned other built-in warning devices or
the petroleum lamps will not immediately get adequate advance warning because he will still
think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car?
Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision.”
Same; Same; There is nothing in Letter of Instruction No. 229 which compels car owners
to purchase the prescribed early warning device. Vehicle owners can produce the device
themselves with a little ingenuity.—Nor did the other extravagant assertions of constitutional
deficiency go unrefuted in the Answer of the Solicitor General: “There is nothing in the
questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which
requires or compels motor vehicle owners to purchase the early warning device prescribed
thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their
motor vehicles with a pair of this early warning device in question, procuring or obtaining the
same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle
owners can even personally make or produce this early warning device so long as the same
substantially conforms with the specifications laid down in said letter of instruction and
administrative order. Accordingly, the early warning device requirement can neither be
oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and
dealers of said devices ‘instant millionaires at the expense of car owners’ as petitioner so
sweepingly concludes.
Same; Courts do not pass upon the wisdom of statutes.—It does appear clearly that
petitioner’s objection to this Letter of Instruction is not premised on lack of power, the
justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view
he entertains as to its wisdom. That approach, to put it at its mildest, is distinguished, if that is
the appropriate word, by its unorthodoxy. It bears repeating “that this Court, in the language of
Justice Laurel, ‘does not pass upon questions of wisdom, justice or expediency of legislation.
Same; Delegation of Powers; To avoid the taint of unlawful delegation of power, the
legislature must set defined standards. In the case at bar the clear objective is public safety.—
The alleged infringement of the fundamental principle of non-delegation of legislative power is
equally without any support in well-settled legal
198
doctrines. Had petitioner taken the trouble to acquaint himself with authoritative
pronouncements from this Tribunal, he would not have the temerity to make such an assertion.
An excerpt from the aforecited decision of Edu v. Ericta sheds light on the matter: “To avoid the
taint of unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy. Otherwise,
the charge of complete abdication may be heard to repel. A standard thus defines legislative
policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to be effected, It is the
criterion by which legislative purpose may fee carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental roles and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be
spelled out specifically. It could be implied from the policy and purpose of the act considered as
a whole. In the Reflector Law, clearly, the legislative objective is public safety.
Same; International Law; The 2968 Vienna Convention on Road Signs and Signals is
impressed with the character of “generally accepted principles of international law” which under
the Constitution the Philippines adopts as part of the law of the land.—The petition itself quoted
these two whereas clauses of the assailed Letter of Instruction: “[Whereas], the hazards posed
by such obstructions to traffic have been recognized by international bodies concerned with
traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of local legislation for
the installation of road safety signs and devices: * * *:” It cannot be disputed then that this
Declaration of Principle found in the Constitution possesses relevance: “The Philippines * * *
adopts the generally accepted principles of international law as part of the law of the land, * * *:
The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It
is not for this country to repudiate a commitment to which it had pledged its word. The concept
of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with
the principle of international morality.
199
Teehankee, J., dissenting:
Constitutional law; Land Transportation Law; Administrative Order No. 1 and
Memorandum Circular No. 32 issued by the Land Transportation Commission is oppressive and
discriminatory because it requires vehicle owners to purchase a specific E.W.D.—It is
oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and
more effective and efficient E.W.D.’s such as “a) blinking lights in the fore and aft of said motor
vehicles, b) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes
on front and rear bumpers on motor vehicles . . . .” to purchase the E.W.D. specified in the
challenged administrative order, whose effectivity and utility have yet to be demonstrated.
Same; Same; Public necessity for issuance of Administrative Order No. 1 has not been
shown.—The public necessity for the challenged order has yet to be shown. No valid refutation
has been made of petitioner’s assertion that the “E.W.D.’s are not too vital to the prevention of
nighttime vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that
occurred in 1976, only 390 or 1.5 per cent involved rear-end collisions,” as to require the
purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the
country.
Same; Same; The E.W.D. requirement in too burdensome on the public.—The big
financial burden to be imposed on all motorists is staggering, and petitioner’s assertion that “as
of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.’s and
at the minimum price of P56.00 per set, this would mean a consumer outlay of P48,451,872.00,
or close to P50 million for the questioned E.W.D.’s stands unchallenged.
Same; Same; No effort was made to show that there can be other less expensive and
practical device.—No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the prescribed E.W.D.,
such as the common petroleum lamps “kinke” which can be placed just as effectively in front of
stalled vehicles on the highways.
Same; Same; There is no imperative need for imposing such a blanket requirements on
all vehicles.—There is no imperative need for imposing such a blanket requirement on all
vehicles. The respondents have not shown that they have availed of the powers and
prerogatives vested in their offices such as ridding the country of
200
dilapidated trucks and vehicles which are the main cause of the deplorable highway
accidents due to stalled vehicles, establishing an honest and foolproof systems of examination
and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a
sustained education campaign to instill safe driving habits and attitudes that can be carried out
for much less than the P50 million burden that would be imposed by the challenged order.
ORIGINAL ACTION in the Supreme Court, Prohibition.
The facts are stated in the opinion of the Court.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E.
Agpalo and Solicitor Amado D. Aquinofor respondents.
FERNANDO, J.:
The validity of a Letter of Instruction1 providing for an early warning device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due
process and, insofar as the rules and regulations for its implementation are concerned, for
transgressing the fundamental principle of non-delegation of legislative power. The Letter of
Instruction is stigmatized by petitioner, who is possessed of the requisite standing, as being
arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F.
Edu, Land Transportation Commisioner; Juan Ponce Enrile, Minister of National Defense;
Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar
Aquino, Minister of Public Highways; were required to answer. That they did in a pleading
submitted by Solicitor General Estelito P. Mendoza.2 Impressed with a highly persuasive quality,
it makes quite dear that the imputation of a constitutional infirmity is devoid of justification. The
challenged Letter of Instruction is a valid
_______________
1
Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479 (1976).
2
He was assisted by Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D.
Aquino.
201
police power measure. Nor could the implementing rules and regulations issued by respondent
Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition
must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos,
issued on December 2, 1974, reads in full: “[Whereas], statistics show that one of the major
causes of fatal or serious accidents in land transportation is the presence of disabled, stalled, or
parked motor vehicles along streets or highways without any appropriate early warning device
to signal approaching motorists of their presence; [Whereas], the hazards posed by such
obstructions to traffic have been recognized by international bodies concerned with traffic
safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine
Government under P.D. No. 207, recommended the enactment of local legislation for the
installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President
of the Philippines, in the interest of safety on all streets and highways, including expressways or
limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles
shall have at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms.
at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is
parked for thirty (30) minutes or more on any street or highway, including expressways or
limited access roads, the owner, user or driver thereof shall cause the warning device
mentioned herein to be installed at least four meters away to the front and rear of the motor
vehicle stalled, disabled or parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued
to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece
not more than 15% of the acquisition cost. He shall also promulgate such rules and regulations
as are appropriate to effectively implement this order. 4. All hereby concerned shall closely
coordinate and take such measures as are necessary or appropriate
202
to carry into effect these instructions.”3 Thereafter, on November 15, 1976, it was amended by
Letter of Instruction No. 479 in this wise: “Paragraph 3 of Letter of Instructions No. 229 is hereby
amended to read as follows: ‘3. The Land Transportation Commissioner shall require every
motor vehicle owner to procure from any source and present at the registration of his vehicle,
one pair of a reflectorized triangular early warning device, as described herein, of any brand or
make chosen by said motor vehicle owner. The Land Transportation Commissioner shall also
promulgate such rules and regulations as are appropriate to effectively implement this order.’
”4There was issued accordingly, by respondent Edu, the implementing rules and regulations on
December 10, 1976.5 They were not enforced as President Marcos, on January 25, 1977,
ordered a six-month period of suspension insofar as the installation of early warning device as a
preregistration requirement for motor vehicles was concerned. 6Then on June 30, 1978, another
Letter of Instruction7 ordered the lifting of such suspension and directed the immediate
implementation of Letter of Instruction No. 229 as amended.8 It was not until August 29, 1978
that respondent Edu issued Memorandum Circular No. 32, worded thus: “In pursuance of Letter
of Instructions No. 716, dated June 30, 1978, directing the implementation of Letter of
Instructions No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early
Warning Devices (EWD) on motor vehicles, the following rules and regulations are hereby
issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from whatever source and that it shall have
substantially complied with the EWD specifications contained in Section 2 of said administrative
order; 2. In order to insure that every motor vehicle, except motorcyles, is equipped with the
device, a pair of
_______________
3
Petition, par. III.
4
Ibid, par. IV.
5
Ibid, par. V.
6
Ibid, par. VIII.
7
No. 716.
8
Petition, par. VII.
203
serially numbered stickers, to be issued free of charge by this Commission, shall be attached to
each EWD. The EWD serial number shall be indicated on the registration certificate and official
receipt of payment of current registration fees of the motor vehicle concerned. All Orders,
Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take
effect immediately.”9 It was for immediate implementation by respondent Alfredo L. Juinio, as
Minister of Public Works, Transportation, and Communications. 10
Petitioner, after setting forth that he “is the owner of a Volkswagen Beetle Car, Model
13035, already properly equipped when it came out from the assembly lines with blinking lights
fore and aft, which could very well serve as an early warning device in case of the emergencies
mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and
regulations in Administrative Order No. 1 issued by the Land Transportation
Commission,”11 alleged that said Letter of Instruction No. 229, as amended, “clearly violates the
provisions and delegation of police power, [sic] * * *:” For him, they are “oppressive,
unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our
compassionate New Society.”12 He contended that they are “infected with arbitrariness because
it is harsh, cruel and unconscionable to the motoring public;”13 are “one-sided, onerous and
patently illegal and immoral because [they] will make manufacturers and dealers instant
millionaires at the expense of car owners who are compelled to buy a set of the socalled early
warning device at the rate of P56.00 to P72.00 per set.”14 are unlawful and unconstitutional and
contrary to the precepts of a compassionate New Society [as being] compulsory and
confiscatory on the part of the motorists who could very well provide a practical alternative road
safety
_______________
9
Ibid, par. VIII.
10
Ibid.
11
Ibid, par. IX.
12
Ibid, par. X.
13
Ibid, par. XI.
14
Ibid, par. X.
204
device, or a better substitute to the specified set of EWDs.”15 He therefore prayed for a
judgment declaring both the assailed Letters of Instructions and Memorandum Circular void and
unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: “L-49112
(Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.)—Considering the allegations contained,
the issues raised and the arguments adduced in the petition for prohibition with writ of
preliminary prohibitory and/or mandatory injunction, the Court Resolved to [require] the
respondents to file an answer thereto within ten (10) days from notice and not to move to
dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order]
effective as of this date and continuing until otherwise ordered by this Court.”16
Two motions for extension were filed by the Office of the Solicitor General and granted.
Then on November 15, 1978, he Answer for respondents was submitted. After admitting the
factual allegations and stating that they lacked knowledge or information sufficient to form a
belief as to petitioner owning a Volkswagen Beetle car, 17 they “specifically deny the allegations
in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that
Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as
Land Transportation Commission Administrative Order No. 1 and its Memorandum Circular No.
32 violates the constitutional provisions on due process of law, equal protection of law and
undue delegation of police power, and that the same are likewise oppessive, arbitrary,
confiscatory, one-sided, onerous, immoral, unreasonable and illegal, the truth being that said
allegations are without legal and factual basis and for the reasons alleged in the Special and
Affirmative Defenses of this Answer.”18Unlike petitioner who contented himself with a rhetorical
recital of his litany of grievances and merely invok-
______________
15
Ibid, par. XI.
16
Resolution of the Court dated October 19, 1978.
17
Answer, pars. 1-6.
18
Ibid, par. 8.
205
ed the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the
assailed Letter of Instruction was a valid exercise of the police power and implementing rules
and regulations of respondent Edu not susceptible to the charge that there was unlawful
delegation of legislative power, there was in the portion captioned Special and Affirmative
Defenses, a citation of what respondents believed to be the authoritative decisions of this
Tribunal calling for application. They are Calalang v. Williams, 19Morfe v. Mutuc,20 and Edu v.
Ericta.21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations
on road traffic, road signs, and signals, of which the Philippines was a signatory and which was
duly ratified.22 Solicitor General Men-doza took pains to refute in detail, in language calm and
dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed
Letter of Instruction and the implementing rules and regulations cannot survive the test of
rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly
joined. As noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That
is conceded by petitioner and is the main reliance of respondents. It is the submission of the
former, however, that while embraced in such a category, it has offended against the due
process and equal protection safeguards of the Constitution, although the latter point was
mentioned only in passing. The broad and expansive scope of the police power which was
originally identified by Chief Justice Taney of the American Supreme Court in an 1847 deci-
_______________
19
70 Phil. 726 (1940). The opinion was penned by Justice Laurel.
20
L-20387, January 31, 1968; 22 SCRA 424. The writer of this opinion is the ponente.
21
L-32096, October 24, 1970, 35 SCRA 481. The writer of this opinion was likewise
the ponente.
22
Answer, par. 18 (a) and (b).
206
sion, as “nothing more or less than the powers of government inherent in every
sovereignty”23 was stressed in the aforementioned case of Edu v. Ericta thus: “Justice Laurel, in
the first leading decision after the Constitution came into force, Calalang v. Williams, identified
police power with state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare. Persons and property could thus ‘be subjected
to all kinds of restraints and burdens in order to secure the general comfort, health and
prosperity of the state.’ Shortly after independence in 1948, Primicias v. Fugoso reiterated the
doctrine, such a competence being referred to as ‘the power to prescribe regulations to promote
the health, morals, peace, education, good order or safety, and general welfare of the peo-ple.’
The concept was set forth in negative terms by Justice Malcolm in a pre-Commonwealth
decision as ‘that inherent and plenary power in the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of society.’ In that sense it could be hardly
distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is
in the above sense the greatest and most powerful attribute of government. It is, to quote
Justice Malcolm anew, ‘the most essential, insistent, and at least illimitable powers,’ extending
as Justice Holmes aptly pointed out ‘to all the great public needs.’ Its scope, ever-expanding to
meet the exigencies of the times, even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: ‘Needs that were narrow or
parochial in the past may be interwoven in the present with the well-being of the nation. What is
critical or urgent changes with the time.’ The police power is thus a dynamic agency, suitably
vague and far from precisely defined, rooted in the conception that men in organizing the state
and imposing upon its government limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the
enactment of such salutary measures
_______________
23
License Cases, 5 How. 504, 583.
207
calculated to insure communal peace, safety, good order, and welfare.”24
1. 2.It was thus a heavy burden to be shouldered by petitioner, compounded by the fact
that the particular police power measure challenged was clearly intended to
promote public safety. It would be a rare occurrence indeed for this Court to
invalidate a legislative or executive act of that character. None has been called to
our attention, an indication of its being non-existent. The latest decision in point,
Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived
with the same end in view. Calalang v. Williams found nothing objectionable in a
statute, the purpose of which was: “To promote safe transit upon, and avoid
obstruction on roads and streets designated as national roads * * *.”26 As a matter of
fact, the first law sought to be nullified after the effectivity of the 1935 Constitution,
the National Defense Act,27 with petitioner failing in his quest, was likewise
prompted by the imperative demands of public safety.
2. 3.The futility of petitioner’s effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his
failure to lay the necessary factual foundation to rebut the presumption of validity.
So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila.28 The ra35 SCRA 481, 487-488. There is no need to repeat
where Calalang and Morfe are reported. Primicias v. Fugosois reported in 80 Phil.
71; Rubi v. Provincial Board, where the first quotation from Justice Malcolm came,
in 39 Phil. 660, 708 (1919); and Smith Bell and Co. v. Natividad, his other decision
cited, in 40 Phil. 136 (1919); Helvering v. Davis, with Justice Cardozo writing the
opinion, in 301 US 619 (1937).
_______________
24
35 SCRA 481, 487-488. There is no need to repeat where Calalang and Morfe are
reported. Primicias v. Fugoso is reported in 80 Phil. 71; Rubi v. Provincial Board, where the first
quotation from Justice Malcolm came, in 39 Phil. 660, 708 (1919); and Smith Bell and Co. v.
Natividad, his other decision cited, in 40 Phil. 136 (1919); Helvering v. Davis, with Justice
Cardozo writing the opinion, in 301 US 619 (1937).
25
Republic Act No. 5715 (1969).
26
Commonwealth Act No. 548 (1940).
27
Cf. People v. Layman, 66 Phil. 13 (1938). Even earlier in United States v. Pompeya, 31
Phil. 245(1915), this Court, by virtue of the police power, held valid a provision of the then
Municipal Code requiring “able-bodied males in the vicinity between certain ages to perform
patrol duty not exceeding one day each week.”
28
L-24693, July 31, 1967, 20 SCRA 849.
208
tionale was clearly set forth in an excerpt from a decision of Justice Brandeis of the American
Supreme Court, quoted in the opinion: “The statute here questioned deals with a subject clearly
within the scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality of legislation
of this character, the presumption of constitutionality must prevail in the absence of some
factual foundation of record in overthrowing the statute.”29
4. Nor did the Solicitor General, as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer: “The President certainly had in his
possession the necessary statistical information and data at the time he issued said letter of
instructions, and such factual foundation cannot be defeated by petitioner’s naked assertion that
early warning devices ‘are not too vital to the prevention of nighttime vehicular accidents’
because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that
occurred in 1976 involved rear-end collisions (p. 12 of petition). Petitioner’s statistics is not
backed up by demonstrable data on record. As aptly stated by this Honorable Court: ‘Further: “It
admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is
not the case here” ’ * * *. But even assuming the verity of petitioner’s statistics, is that not reason
enough to require the installation of early warning devices to prevent another 390 rear-end
collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise
result from head-on or frontal collisions with stalled vehicles?”30 It is quite manifest then that the
issuance of such Letter of Instruction is encased in the armor of prior,
_______________
29
Ibid, 857. The excerpt came from O’Gorman and Young v. Hartford Fire Insurance
Co., 282 US 251, 328 (1931).
30
Answer, par. 18 (a). The excerpt came from Samson v. Mayor of Bacolod City, L-28745;
October 23, 1974; 60 SCRA 267; 270.
209
careful study by the Executive Department. To set it aside for alleged repugnancy to the due
process clause is to give sanction to conjectural claims that exceeded even the broadest
permissible limits of a pleader’s well-known penchant for exaggeration.
1. 5.The rather wild and fantastic nature of the charge of oppressiveness of this Letter of
Instruction was exposed in the Answer of the Solicitor General thus: “Such early
warning device requirement is not an expensive redundancy, nor oppressive, for car
owners whose cars are already equipped with 1) ‘blinking lights in the fore and aft of
said motor vehicles,’ 2) ‘battery-powered blinking lights inside motor vehicles,’ 3)
‘built-in reflectorized tapes on front and rear bumpers of motor vehicles,’ or 4) ‘well-
lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal among
the signatory countries to the said 1968 Vienna Conventions, and visible even under
adverse conditions at a distance of at least 400 meters, any motorist from this
country or from any part of the world, who sees a reflectorized rectangular early
 warning device installed on the roads, highways or expressways, will conclude,
without thinking, that somewhere along the travelled portion of that road, highway,
or expressway, there is a motor vehicle which is stationary, stalled or disabled which
obstructs or endangers passing traffic. On the other hand, a motorist who sees any
of the aforementioned other built-in warning devices or the petroleum lamps will not
immediately get adequate advance warning because he will still think what that
blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is
it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus
increase, rather than decrease, the danger of collision.”31
2. 6.Nor did the other extravagant assertions of constitutional deficiency go unrefuted in
the Answer of the Solicitor General: “There is nothing in the questioned Letter of
Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or
compels motor vehicle owners to purchase the early warning device prescribed
thereby. All that is
_______________
31
Ibid, par. 18 (c).
210
required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with
a pair of this early warning device in question, procuring or obtaining the same from whatever
source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even
personally make or produce this early warning device so long as the same substantially
conforms with the specifications laid down in said letter of instruction and administrative order.
Accordingly, the early warning device requirement can neither be oppressive, onerous, immoral,
nor confiscatory, much less does it make manufacturers and dealers of said devices ‘instant
millionaires at the expense of car owners’ as petitioner so sweepingly concludes * * *.
Petitioner’s fear that with the early warning device requirement ‘a more subtle racket’ may be
committed by those called upon to enforce it * * * is an unfounded speculation. Besides, that
unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an
unreasonable degree, does not render the same illegal or immoral where, as in the instant case,
the challenged Letter of Instruction No. 229 and implementing order disclose none of the
constitutional defects alleged against it.”32
7. It does appear clearly that petitioner’s objection to this Letter of Instruction is not
premised on lack of power, the justification for a finding of unconstitutionality, but on the
pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at
its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating
“that this Court, in the language of Justice Laurel, ‘does not pass upon questions of wisdom,
justice or expediency of legislation.’ As expressed by Justice Tuason: ‘It is not the province of
the courts to supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern.’ There can be no possible
objection then to the observation of Justice Montemayor: ‘As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of whether or
not they are wise or salutary.’
_______________
32
Ibid, par. 18 (d) and (e).
211
For they, according to Justice Labrador, ‘are not supposed to override legitimate policy and * * *
never inquire into the wisdom of the law.’ It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional power or
competence, not the wisdom of the action taken, may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of powers has in the main wisely
allocated the respective authority of each department and confined its jurisdiction to such a
sphere. There would then be intrusion not allowable under the Constitution if on a matter left to
the discretion of a coordinate branch, the judiciary would substitute its own. If there be
adherence to the rule of law, as there ought to be, the last offender should be courts of justice,
to which rightly litigants submit their controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack on the validity of the challenged
provision likewise insofar as there may be objections, even if valid and cogent, on is wisdom
cannot be sustained.”33
8. The alleged infringement of the fundamental principle of non-delegation of legislative
power is equally without any support well-settled legal doctrines. Had petitioner taken the
trouble to acquaint himself with authoritative pronouncements from this Tribunal, he would not
have the temerity to make such an assertion. An exerpt from the aforecited decision of Edu v.
Ericta sheds light on the matter: “To avoid the taint of unlawful delegation, there must be a
standard, which implies at the very least that the legislature itself determines matters of principle
and lays down fundamental policy.
_______________
33
Morfe v. Mutuc, 22 SCRA 424, 450-451. The citation from Justice Laurel may be traced
to Angara v. Electoral Commission, 63 Phil. 139, 160 (1936); from Justice Tuason to People v.
Carlos, 78 Phil. 535, 548 (1947); from Justice Montemayor to Quintos v. Lacson, 97 Phil. 290,
293 (1955); and from Justice Labrador to Ichong v. Her-nandez, 101 Phil. 1155, 1166 (1957).
Chief Justice Concepcion’s reiteration of the doctrine, paraphrased in the quoted opinion, was
made by him in Gonzales v. Commission on Elections, L-28196, November 9, 1967, 21 SCRA
774. Cf. Province of Pangasinan v. Secretary of Public Works, L-27861, October 31, 1969, 30
SCRA 134.
212
Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command is to be effected. It
is the criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations. The standard may be either express or implied. If the
former, the non-delegation objection is easily met. The standard though does not have to be
spelled out specifically. It could be implied from the policy and purpose of the act considered as
a whole. In the Reflector Law, clearly, the legislative objective is public safety. What is sought to
be attained as in Calalang v. Williams is “safe transit upon the roads.’ This is to adhere to the
recognition given expression by Justice Laurel in a decision announced not too long after the
Constitution came into force and effect that the principle of non-delegation “has been made to
adapt itself to the complexities of modern governments, giving rise to the adoption, within
certain limits, of the principle of “subordinate legislation” not only in the United States and
England but in practicaly all modern governments.’ He continued: ‘Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature and toward the approval of the practice by the
courts.’ Consistency with the conceptual approach requires the reminder that what is delegated
is authority non-legislative in character, the completeness of the statute when it leaves the
hands of Congress being assumed.”34
9. The conclusion reached by this Court that this petition must be dismissed is reinforced by
this consideration. The petition itself quoted these two whereas clauses of the assailed
_______________
34
35 SCRA 481, 497-498. The following cases were also cited: People v. Exconde, 101
Phil. 1125(1957), and People v. Jolliffe, 105 Phil. 677 (1959).
213
Letter of Instruction: “[Whereas], the hazards posed by such obstructions to traffic have been
recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on
Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said
Vienna Convention, which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety signs and
devices; * * *”35 It cannot be disputed then that this Declaration of Principle found in the
Constitution possesses relevance: “The Philippines * * * adopts the generally accepted
principles of international law as part of the law of the land,* * *.” 36The 1968 Vienna Convention
on Road Signs and Signals is impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The concept of Pacta sunt
servanda stands in the way of such an attitude, which is, moreover, at war with the principle of
international morality.
10. That is about all that needs be said. The rather court reference to equal protection did
not even elicit any attempt on the part of petitioner to substantiate in a manner clear, positive,
and categorical, why such a casual observation should be taken seriously. In no case is there a
more appropriate occasion for insistence on what was referred to as “the general rule”
in Santiago v. Far Eastern Broadcasting Co.,37 namely, “that the constitutionality of a law will not
be considered unless the point is specially pleaded, insisted upon, and adequately
argued.”38 “Equal protection” is not a talismanic formula at the mere invocation of which a party
to a lawsuit can rightfully expect that success will crown his ef-forts. The law is anything but that.
_______________
35
Petition, par. III.
36
Article II, Section 3 of the Constitution reads in full: “The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.”
37
73 Phil. 408 (1941).
38
Ibid, 412.
214
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is
immediately executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De
Castro and Melencio-Herrera, concur.
Teehankee, J. dissents in a separate opinion.
Makasiar, J., reserves the right to file a separate opinion.
Aquino, J., did not take part.
Concepcion, J., is on leave. Castro, C.J., certifies Justice Concepcion concurs in their
decision.
Petition dismissed.
SEPARATE OPINION
TEEHANKEE, J., dissenting:
I dissent from the majority’s peremptory dismissal of the petition and lifting of the restraining
order issued on October 19, 1978 against the blanket enforcement of the requirement that all
motor vehicles be equipped with the so-called early warning device, without even hearing the
parties in oral argument as generally required by the Court in original cases of farreaching
consequence such as the case at bar.
Lack of time presents my filing an extended dissent, I only wish to state that the petition
advances grave and serious grounds of assailing “the rules and regulations issued by the Land
Transportation Commission under Administrative Order No. 1 and Memorandum Circular No. 32
[which] do not reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229,
as amended by Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable,
arbitrary, confiscatory, may unconstitutional and contrary to the precepts of our compassionate
New Society,” because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with
built-in and more effective and
215
efficient E.W.D.’s such as “a) blinking lights in the fore and aft of said motor vehicles, b) battery-
powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on front and rear
bumpers of motor vehicles . . . . .” to purchase the E.W.D. specified in the challenged
administrative order, whose effectivity and utility have yet to be demonstrated.
1. 2.The public necessity for the challenged order has yet to be shown. No valid
refutation has been made of petitioner’s assertion that the “E.W.D.’s are not too vital
to the prevention of nighttime vehicular accidents. Statistics shows that of the
26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 per cent
involved rear-end collisions,” as to require the purchase and installation of the
questioned E.W.D. for almost 900,000 vehicles throughout the country;
2. 3.The big financial burden to be imposed on all motorists is staggering, and
petitioner’s assertion that “as of 1975, there were at least 865,037 motor vehicles all
over the country requiring E.W.D.’s and at the minimum price of P56.00 per set, this
would mean a consumer outlay of P48,451,872.00, or close to P50 million for the
questioned E.W.D.’s “stands unchallenged;
3. 4.No real effort has been made to show that there can be practical and less
burdensome alternative road safety devices for stalled vehicles than the prescribed
E.W.D., such as the common petroleum lamps “kinke” which can be placed just as
effectively in front of stalled vehicles on the highways; and
4. 5.There is no imperative need for imposing such a blanket requirement on all
vehicles. The respondents have not shown that they have availed of the powers and
prerogaties vested in their offices such as ridding the country of dilapidated trucks
and vehicles which are the main cause of the deplorable highway accidents due to
stalled vehicles, establishing an honest and foolproof system of examination and
licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a
sustained education campaign to instill safe driving habits and attitudes that can be
carried out for much less than the P50 million burden that would be imposed by the
challenged order.
I do feel that a greater “degree of receptivity and sympathy” could be extended to the petitioner
for his civic-
216
mindedness in having filed the present petition challenging as capricious and unreasonable the
“all-pervading police power” of the State instead of throwing the case out of court and leaving
the wrong impression that the exercise of police power insofar as it may affect the life, liberty
and property of any person is no longer subject to judicial inquiry.
Notes.—Article 30 of the Warsaw Convention on International Air Transportation does not
apply to a case where an airplane refuses to transport a passenger with confirmed reservation.
(KLM Royal Dutch Airlines vs. Court of Appeals, 65 SCRA 237).
A driver’s license which bear the earmarks of a duly issued license is a public document
which is presumed genuine. (CCC Insurance Corp. vs. Court of Appeals, 31 SCRA 264).
The Revised Motor Vehicle Law allows the registration and use of motor vehicles with a
width of more than 2.5 meters. (Ramos vs. Pepsi Cola Bottling Co., Inc., 19 SCRA 294).
A truck-trailer must be provided either with a helper or a rear-vision mirror. Where there was
no factual finding of the Court of Appeals that a Truck-Trailer did not have such a mirror, it
cannot be concluded that it was not equipped with such mirror. (Ramos vs. Pepsi Cola Bottling
Co., Inc., 19 SCRA 294).
Where the legislation complained of is shown to be an exercise of police power, it does not
mean that the invocation of the protection of the non-impairment clause would be unavailing;
otherwise, the constitutional guarantee of non-impairment, and for that matter both of the equal
protection and due process clauses which protect property rights would be rendered nugatory.
(Alalayan vs. National Power Corporation, 24 SCRA 172).
By its nature and scope, police power embraces the power to prescribe regulations to
promote the health, morals, education, good order, safety, or the general welfare of the people;
an inherent and plenary power of the state which enables it to prohibit all things hurtful to the
conform, safety and welfare of society; the power to promote the general welfare and public
interest; the power to enact laws in relation to persons and pro-
217
perty as may promote public health, public morals, public safety and the general welfare of each
inhabitant, the power to preserve public order and to prevent offenses against the State and to
establish for the intercourse of citizen with citizen those rules of good manners and good
neighborhood calculated to prevent conflict of rights. (Morfe vs. Mutuc, 22 SCRA 424).

——o0o——

G.R. No. 88211.September 15, 1989.*
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACA-RAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents.
Political Law; Bill of Rights; Liberty of Abode; Right to Travel; The right to return to one’s
country is not among the rights specifically guaranteed under the Bill of Rights, though it may
well be considered
_______________
*
EN BANC.
669
as a generally accepted principle of international law which is part of the law of the
land.—The right to return to one’s country is not among the rights specifically guaranteed in the
Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our
wellconsidered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution]. However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and Political Rights,
i.e.,against being “arbitrarily deprived” thereof [Art. 12 (4)].
Same; Same; The constitutional guarantees invoked by petitioners are not absolute and
inflexible, they admit of limits and must be adjusted to the requirements of equally important
public interests.—The resolution of the problem is made difficult because the persons who seek
to return to the country are the deposed dictator and his family at whose door the travails of the
country are laid and from whom billions of dollars believed to be ill-gotten wealth are sought to
be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and of expression, although couched in
absolute terms, admits of limits and must be adjusted to the requirements of equally important
public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].
Same; Separation of Powers; Executive Powers; The grant of execu-tive power means a
grant of all executive powers.—The 1987 Constitution has fully restored the separation of
powers of the three great branches of government. To recall the words of Justice Laurel in
Angara v. Electoral Commission [63 Phil. 139 (1936)], “the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government.” [At 157]. Thus, the 1987 constitution explicitly provides that
“[t]he legislative power shall be vested in the Congress of the Philippines” [Art. VI, Sec. 1], “[t]he
executive power shall be vested in the President of the Philippines” [Art. VII, Sec. 1], and “[t]he
judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law” [Art. VIII, Sec. 1]. These provisions not only establish a separation of
powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary
legislative, executive and judicial powers subject only to limitations provided in the Constitution.
For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626, (1910)] pointed out “a grant of
the legislative power means a
670
grant of all legislative power; and a grant of the judicial power means a grant of all the
judicial power which may be exercised under the government.” [At 631-632.] If this can be said
of the legislative power which is exercised by two chambers with a combined membership of
more than two hundred members and of the judicial power which is vested in a hierarchy of
courts, it can equally be said of the executive power which is vested in one official—the
President.
Same; Same; Same; The President; The powers granted to the President are not limited
to those powers specifically enumerated in the Constitution.—It would not be accurate,
however, to state that “executive power” is the power to enforce the laws, for the President is
head of state as well as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the President. It also grants
the President other powers that do not involve the execu-tion of any provision of law, e.g.,his
power over the country’s foreign relations. On these premises, we hold the view that although
the 1987 Constitution imposes limitations on the exercise of specificpowers of the President, it
maintains intact what is traditionally considered as within the scope of “executive power.”
Corollarily, the powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the sum of
specific powers so enumerated.
Same; Same; Same; Same; Commander-In-Chief Powers: The President can exercise
Commander-In-Chief powers in order to keep the peace and maintain public order and security
even in the absence of an emergency.—More particularly, this case calls for the exercise of the
President’s powers as protector of the peace. [Rossiter, The Ameri-can Presidency.] The power
of the President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency,
but is also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any
way disminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the Presi-dent’s exercising as Commander-in-Chief powers
short of the calling of
671
the armed forces, or suspending the privilege of the writ of habeas corpusor declaring
martial law, in order to keep the peace, and maintain public order and security.
Same; Same; Same; Same; The President has the power under the Constitution to bar
the Marcoses from returning to our country.—That the President has the power under the
Constitution to bar the Marcoses from returning has been recognized by members of the
Legislature, and is manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to return to the
Philippines “as a genuine unselfish gesture for true national reconciliation and as irrevocable
proof of our collective adherence to uncompromising respect for human rights under the
Constitution and our laws.” [House Resolution No. 1342, Rollo, p. 321.] The Resolution does not
question the President’s power to bar the Marcoses from returning to the Philippines, rather, it
appeals to the President’s sense of compassion to allow a man to come home to die in his
country. What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or
of case law which clearly never contemplated situations even remotely similar to the present
one. It must be treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
Same; Same; Same; Power of Judicial Review; Political Question Doctrine; The present
Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry.—Under the Constitution, judicial power includes the duty to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Goverment.” [Art. VIII, Sec. 1.] Given this wording,
we cannot agree with the Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide. The present Constitution limits resort to the
political question doctrine and broadens the scope of judicial inquiry into areas which the Court,
under previous constitutions, would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court’s jurisdiction the determination of which is
exclusively for
 672
the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the President’s recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving
of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought
before us because the power is reserved to the people.
Same; Same; Same; Same; In the exercise of the power of judicial review, the function of
the court is merely to check, not to supplant the Executive.—There is nothing in the case before
us that precludes our determination thereof on the political question doctrine. The deliberations
of the Constitutional Commission cited by petitioners show that the framers intended to widen
the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse
is not established, the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution,
defining “judicial power,” which specifically empowers the courts to determine whether or not
there has been a grave abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
33964, December 11, 1971, 42 SCRA 448] that: Article VII of the [1935] Constitution vests in
the Executive the power to suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the
system of checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise
of such authority, the function of the Court is merely to check—not to supplant—the Executive,
or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine the
673
wisdom of his act. . . . [At 479-480.]
Same; Same; Same; Same; The President did not act arbitrarily, capriciously and
whimsically in determining that the return of the Marcoses poses a serious threat to national
interest and welfare, and in prohibiting their return.—We find that from the pleadings filed by the
parties, from their oral arguments, and the facts revealed during the briefing in chambers by the
Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual basis for the President’s
decision. The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a wellorganized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented history
of the efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in
thisponenciabolsters the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate more chaos. As
divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups.
But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final
straw that would break the camel’s back. With these before her, the President cannot be said to
have acted arbitrarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in prohibiting their
return.
FERNAN, C.J., Concurring
Political Law; Executive Department; Presidential Power; Presidential powers and
prerogatives are not fixed and their limits are dependent on the imperatives of events and
contemporary imponderables rather than on abstract theories of law.—Presidential powers and
prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: “residual,” “inherent,” “moral,” “implied,”
674
“aggregate,” “emergency.” Whatever they may be called, the fact is that these powers
exist, as they must if the governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the President to allow or disallow
the Marcoses to return to the Philippines should be viewed. By reason of its impact on national
peace and order in these admittedly critical times, said question cannot be withdrawn from the
competence of the Executive Branch to decide.
GUTIERREZ, J., Dissenting
Political Law; The President; The Judiciary; Power of Judicial Review; Political
Question; For a political question to exist, there must be in the Constitution a power exclusively
vested in the President or Congress, the exercise of which the courts should not examine or
prohibit. The issue as to the propriety of the President’s decision to prohibit the Marcoses from
returning is not a political question.—The most often quoted definition of political question was
made by Justice William J. Brennan, Jr., who penned the decision of the United States Supreme
Court in Baker v. Carr (369 US 186, 82 S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a
political question as formulated in Baker v. Carr are: “It is apparent that several formulations
which vary slightly according to the settings in which the questions arise may describe a political
question, which identifies it as essentially a function of the separation of powers. Prominent on
the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a
court’s undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or potentiality of embarassment from multifarious
pronouncements by various departments on one question.” For a political question to exist,
there must be in the Constitution a power vested exclusively in the President or Congress, the
exercise of which the court should not examine or prohibit. A claim of plenary or inherent power
against a civil right which claim is not found in a specific provision is dangerous. Neither should
we validate a roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Government is bound by the rule
of law. The respondents have not pointed to any provision of the Constitution which commits or
vests the determi-
675
nation of the question raised to us solely in the President.
Same; Same; Bill of Rights; Liberty of Abode; The liberty of abode and of changing the
same within the limits prescribed by law may be impaired only upon a lawful order of the court,
not of an executive officer, not even the President.—Section 6 of the Bill of Rights states
categorically that the liberty of abode and of changing the same within the limits prescribed by
law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even
by the President. Section 6 further provides that the right to travel, and this obviously includes
the right to travel out of or back into the Philippines, cannot be impaired except in the interest of
national security, public safety, or public health, as may be provided by law.
Same; Same; Same; Same; The Court has the last word when it comes to Constitutional
liberties.—There is also no disrespect for a Presidential determination if we grant the petition.
We would simply be applying the Constitution, in the preservation and defense of which all of us
in Government, the President and Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.
Same; The Judiciary; Judicial Power; Political Questions; The constitutional provision
defining judicial power was enacted to preclude the Court from using the political question
doctrine as a means to avoid controversial issues.—The second paragraph of Section 1, Article
VIII of the Constitution provides: “Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.” This new
provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing
to the President or Congress, inordinately unpopular, or which may be ignored and not
enforced. The framers of the Constitution believed that the free use of the political question
doctrine allowed the Court during the Marcos years to fall back on prudence, institutional
difficulties, complexity of issues, momentousness of consequences or a fear that it was
extravagantly extending judicial power in the cases where it refused to examine and strike down
an exercise of authoritarian power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous
676
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine.
The Constitution was accordingly amended. We are now precluded by its mandate from
refusing to invalidate a political use of power through a convenient resort to the political
question doctrine. We are compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters. This is not to state that there can be no
more political questions which we may refuse to resolve. There are still some political questions
which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is
not one of them.
Same; Same; Bill of Rights; Liberty of Abode; Right to Travel; The right to come home
must be more preferred than any other aspect of the right to travel.—With all due respect for the
majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must bemore preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other “undesirables” and “threats to national
security” during that unfortunate period which led the framers of our present Constitution not
only to re-enact but to strengthen the declaration of this right. Media often asks, “what else is
new?” I submit that we now have a freedom loving and humane regime. I regret that the Court’s
decision in this case sets back the gains that our country has achieved in terms of human rights,
especially human rights for those whom we do not like or those who are against us.
Same; Same; Same; Opposition to the government, no matter how odious and disgusting
is not sufficient to deny or ignore a constitutional right.—It is indeed regrettable that some
followers of the former President are conducting a campaign to sow discord and to divide the
nation. Opposition to the government no matter how odious or disgusting is, however,
insufficient ground to ignore a constitutional guarantee.
Same; Same; Same; Same; Denial of travel papers is not among the powers granted to
the government; There is no law prescribing exile to a foreign land as a penalty for hurting the
nation.—Of course, the Government can act. It can have Mr. Marcos arrested and tried in court.
The Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers
677
because the Bill of Rights says so. There is no law prescribing exile in a foreign land as
the penalty for hurting the Nation.
CRUZ, J., Dissenting
Political Law; Bill of Rights; Petitioner, as a Filipino, is entitled to return to or live or die in
his own country.—It is my belief that the petitioner, as a citizen of the Philippines, is entitled to
return to and live—and die—in his own country. I say this with a heavy heart but say it
nonetheless. That conviction is not diminished one whit simply because many believe Marcos to
be beneath contempt and undeserving of the very liberties he flouted when he was the absolute
ruler of this land.
Same; Same; Same; The government failed dismally to show that the return of Marcos,
dead or alive, would pose a threat to national security.—In about two hours of briefing, the
government failed dismally to show that the return of Marcos dead or alive would pose a threat
to the national security as it had alleged. The fears expressed by its representatives were based
on mere conjectures of political and economic destabilization without any single piece of
concrete evidence to back up their apprehensions. Amazingly, however, the majority has come
to the conclusion that there exist “factual bases for the President’s decision” to bar Marcos’s
return. That is not my recollection of the impressions of the Court after that hearing.
Same; Same; Same; Marcos is entitled to the same right to travel and liberty of abode
that Aquino then invoked.—Like the martyred Ninoy Aquino who also wanted to come back to
the Philippines against the prohibitions of the government then, Marcos is entitled to the same
right to travel and the liberty of abode that his adversary invoked. These rights are guaranteed
by the Constitution to allindividuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.
PARAS, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The former President, as a Filipino citizen,
has the right to return to his own country, except only if prevented by the demands of national
safety and national security.—There is no dispute that the former President is still a Filipino
citizen and both under the Universal Declaration of Human Rights and the 1987 Constitution of
the Philippines, he has the right to return to his own country exceptonly if prevented by the
demands
678
of national safety and national security. Our Armed Forces have failed to prove this
danger. They are bereft of hard evidence, and all they can rely on is sheer speculation. True,
there is some danger but there is no showing as to the extent.
PADILLA, J., Dissenting
Political Law; Bill of Rights; Right to Travel; Police Power; With or without restricting
legislation, the right to travel may be impaired or restricted in the interest of national security,
public safety and public health; Power of the state to restrict the right to travel finds abundant
support in police power.—Petitioners contend that, in the absence of restricting legislation, the
right to travel is absolute. I do not agree. It is my view that, with or without restricting legislation,
the interest of national security, public safety or public health can justify and even require
restrictions on the right to travel, and that the clause “as may be provided by law” contained in
Article III, Section 6 of the 1987 Constitution merely declares a constitutional leave or
permission for Congress to enact laws that may restrict the right to travel in the interest of
national security, public safety or public health. I do not, therefore, accept the petitioners’
submission that, in the absence of enabling legislation, the Philippine Government is powerless
to restrict travel even when such restriction is demanded by national security, public safety or
public health. The power of the State, in particular cases, to restrict travel of its citizens finds
abundant support in the police power of the State, which may be exercised to preserve and
maintain government as well as promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Same; Same; Same; The government failed to present convincing evidence to defeat
Marcos’ right to return to this country.—I have given these questions a searching examination. I
have carefully weighed and assessed the “briefing” given the Court by the highest military
authorities of the land last 28 July 1989. I have searched, but in vain, for convincing evidence
that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It
appears to me that the apprehensions entertained and expressed by the respondents, including
those conveyed through the military, do not, with all due respect, escalate to proportions of
national security or public safety. They appear to be more speculative than real, obsessive
rather
679
than factual. Moreover, such apprehensions even if translated into realities, would be
“under control,” as admitted to the Court by said military authorities, given the resources and
facilities at the command of government. But, above all, the Filipino people themselves, in my
opinion, will know how to handle any situation brought about by a political recognition of Mr.
Marcos’ right to return, and his actual return, to this country. The Court, in short, should not
accept respondents’ general apprehensions, concerns and perceptions at face value, in the light
of a countervailing and even irresistible, specific, clear, demandable, and enforceable right
asserted by a Filipino.
SARMIENTO, J., Dissenting
Political Law; Bill of Rights; Right to Travel; The right to return to one’s own country
cannot be distinguished from the right to travel and freedom of abode.—I also find quite strained
what the majority would have as the “real issues” facing the Court: “The right to return to one’s
country,” pitted against “the right of travel and freedom of abode,” and their supposed
distinctions under international law, as if such distinctions under international law, in truth and in
fact exist. There is only one right involved here, whether under municipal or international law:
the right of travel, whether within one’s own country, or to another, and the right to return
thereto. The Constitution itself makes no distinctions; let, then, no one make a distinction. Ubi
lex non distinguit, nec nos distinguere debemus.
Same; The President; Bill of Rights; While the President may exercise powers not
expressly granted by the Constitution but may necessarily be implied therefrom, the latter must
yield to the paramountcy of the Bill of Rights.—While the Chief Executive exercises powers not
found expressly in the Charter, but has them by constitutional implication, the latter must yield to
the paramountcy of the Bill of Rights. According to Fernando: “A regime of constitutionalism is
thus unthinkable without an assurance of the primacy of a bill of rights. Precisely a constitution
exists to assure that in the discharge of the governmental functions, the dignity that is the
birthright of every human being is duly safeguarded. To be true to its primordial aim, a
constitution must lay down the boundaries beyond which lies forbidden territory for state action.”
My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the President’s
plenitude of powers, as provided in the Constitution, or by sheer constitutional implication,
prevail over express constitutional commands. “Clearly,” so I borrow J.B.L. Reyes, in his own
right, a
680
titan in the field of public law, “this argument . . . rests . . . not upon the text of the
[Constitution] . . . but upon a mere inference therefrom,” For if it were, indeed, the intent of the
Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the same—other than what it explicitly says already (“limits prescribed
by law” or “upon lawful order of the court”)—the Charter could have specifically declared so. As
it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it
could have so averred. It would also have made the Constitution, as far as limits to the said right
are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Same; Same; Same; Same; Same; Under the new Constitution, the right to travel may be
impaired only within the limits provided by law; The President has been divested of the implied
power to impair the right to travel.—Obviously, none of the twin legal bars exist. There is no law
banning the Marcoses from the country; neither is there any court decree banishing him from
Philippine territory. It is to be noted that under the 1973 Constitution, the right to travel is worded
as follows: Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security, public safety, or public
health. Under this provision, the right may be abated: (1) upon a lawful court order, or (2) “when
necessary in the interest of national security, public safety, or public health.” Arguably, the
provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which,
Bernas says, justified such practices as “hamletting,” forced relocations, or the establishment of
free-fire zones. The new Constitution, however, so it clearly appears, has divested the
Executive’s implied power. And, as it so appears, the right may be impaired only “within the
limits provided by law.” The President is out of the picture.
Same; Same; Same; Same; The determination of whether Marcos’ return poses a threat
to national security should not be left solely to the Chief Executive, the Court itself must be
satisfied that the threat is not only clear but also present.—Admittedly, the Chief Executive is the
“sole” judge of all matters affecting national security and foreign affairs; the Bill of Rights—
precisely, a form of check against excesses of officialdom—is, in this case, a formidable barrier
against Presidential action. (Even on matters of State security, this Constitution prescribes limits
to Executive’s powers as commander-in-chief.) Second: Assuming, ex hypothesi, that the
President may legally act, the
681
question that emerges is: Has it been proved that Marcos, or his return, will, in fact,
interpose a threat to the “national security, public safety, or public health?” What appears in the
records are vehement insistences that Marcos does pose a threat to the national good—and
yet, at the same time, we have persistent claims, made by the military top brass during the
lengthy closed-door hearing on July 25, 1989, that “this Government will not fall” should the
former first family in exile step on Philippine soil. Which is which? At any rate, it is my opinion
that we can not leave that determination solely to the Chief Executive. The Court itself must be
content that the threat is not only clear, but more so, present.
CORTÉS, J.:
Before the Court is a controversy of grave national importance. While ostensibly only legal
issues are involved, the Court’s decision in this case would undeniably have a profound effect
on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency
via the non-violent “people power” revolution and forced into exile. In his stead, Corazon C.
Aquino was declared President of the Republic under a revolutionary government. Her
ascension to and consolidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7
by rebel troops led by Col. Canlas with the support of “Marcos loyalists” and the unsuccessful
plot of the Marcos spouses to surreptitiously return from Hawaii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the
nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and
blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined
the victory of “people power” and also clearly reinforced the constitutional moorings of Mrs.
Aquino’s presidency. This did not, however, stop bloody challenges to the government. On
August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution,
led a failed coup that left scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message they con-
682
veyed was the same—a split in the ranks of the military establishment that threatened civilian
supremacy over the military and brought to the fore the realization that civilian government
could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements in the
military establishment and among rabid followers of Mr. Marcos. There were also the communist
insurgency and the secessionist movement in Mindanao which gained ground during the rule of
Mr. Marcos, to the extent that the communists have set up a parallel government of their own in
the areas they effectively control while the separatists are virtually free to move about in armed
bands. There has been no let up in these groups’ determination to wrest power from the
government. Not only through resort to arms but also through the use of propaganda have they
been successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the
plunder of the nation attributed to Mr. Marcos and his cronies left the economy devastated. The
efforts at economic recovery, three years after Mrs. Aquino assumed office, have yet to show
concrete results in alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to die.
But Mrs. Aquino, considering the dire consequences to the nation of his return at a time when
the stability of government is threatened from various directions and the economy is just
beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the respondents to issue
travel documents to Mr. Marcos
683
and the immediate members of his family and to enjoin the implementation of the President’s
decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of
the following issues:
1. 1.Does the President have the power to bar the return of former President Marcos
and his family to the Philippines?
1. a.Is this a political question?
1. 2.Assuming that the President has the power to bar former President Marcos and his
family from returning to the Philippines, in the interest of “national security, public
safety or public health”—
1. a.Has the President made a finding that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety or public health?
2. b.Assuming that she has made that finding,—
1. (1)Have the requirements of due process been complied with in making such finding?
2. (2)Has there been prior notice to petitioners?
3. (3)Has there been a hearing?
4. (4)Assuming that notice and hearing may be dispensed with, has the President’s
decision, including the grounds upon which it was based, been made known to
petitioners so that they may controvert the same?
1. c.Is the President’s determination that the return of for-mer President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety, or public health a political question?
2. d.Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public
safety, or public health, have respondents established such fact?
684
1. 3.Have the respondents, therefore, in implementing the President’s decision to bar
the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former President
Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the Marcoses to return to
the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
xxx
Section 6 .The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so “within the limits prescribed by law.” Nor may the
President impair their right to travel because no law has authorized her to do so. They advance
the view that before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his
family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1)Everyone has the right to freedom of movement and residence within the borders
of each state.
(2)Everyone has the right to leave any country, including his own, and to return to his
country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:
685
Article 12
1. 1)Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.
2. 2)Everyone shall be free to leave any country, including his own.
3. 3)The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
4. 4)No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents’ principal argument is that the issue in this case involves a
political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at this
time in the face of the determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question
as it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the two
rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the more
primordial and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable
Court can decide.
686
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines
and reestablish their residence here even if their return and residence here will endanger
national security and public safety? This is still a justiciable question which this Honorable Court
can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority and
competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual
rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4.The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or civil
service.
Section 5.The maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and his family from returning to
the Philippines for reasons of national security and public safety has international precedents.
Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of Nicaragua, Jorge Ubico of
Guatemala, Fulgencio Batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez
of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators
whose return to their homelands was prevented by their governments. [See Statement of
Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-
32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential
power and its limits. We, however, view this issue in a different light. Although we give due
weight to the parties’ formulation of the issues, we are not bound by its
687
narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the
right to travel and the import of the decisions of the U.S. Supreme Court in the leading cases
of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S.
280, 101 SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved is the right to return to one’s country, a totally
distinct right under international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the territory of a state,
the right to leave a country, and the right to enter one’s country as separate and distinct rights.
The Declaration speaks of the “right to freedom of movement and residence within the borders
of each state” [Art. 13(1)] separately from the “right to leave any country, including his own, and
to return to his country.” [Art. 13(2).] On the other hand, the Covenant guarantees the “right to
liberty of movement and freedom to choose his residence” [Art. 12(1)] and the right to “be free to
leave any country, including his own.” [Art. 12(2)] which rights may be restricted by such laws as
“are necessary to protect national security, public order, public health or morals or the separate
rights and freedoms of others.” [Art. 12(3)] as distinguished from the “right to enter his own
country” of which one cannot be “arbitrarily deprived.” [Art. 12(4).] It would therefore be
inappropriate to construe the limitations to the right to return to one’s country in the same
context as those pertaining to the liberty of abode and the right to travel.
The right to return to one’s country is not among the rights specifically guaranteed in the Bill
of Rights, which treats only of the liberty of abode and the right to travel, but it is our
wellconsidered view that the right to return may be considered, as a generally accepted
principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of
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the Constitution.] However, it is distinct and separate from the right to travel and enjoys a
different protection under the International Covenant of Civil and Political Rights, i.e.,against
being “arbitrarily deprived” thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig,which refer to the issuance of passports for
the purpose of effectively exercising the right to travel are not determinative of this case and are
only tangentially material insofar as they relate to a conflict between executive action and the
exercise of a protected right. The issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can
be limitations on the right to travel in the absence of legislation to that effect is rendered
unnecessary. An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the
methodology for its resolution. Our resolution of the issue will involve a two-tiered approach. We
shall first resolve whether or not the President has the power under the Constitution, to bar the
Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the express
power of the Court under the Constitution in Article VIII, Section 1, whether or not the President
acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction
when she determined that the return of the Marcoses to the Philippines poses a serious threat
to national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil.
139 (1936)], “the Constitution has blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government.” [At 157.]
Thus, the 1987 Constitution explicitly provides that “[t]he legislative power shall be vested in the
Congress of the Philippines” [Art. VI, Sec. 1], “[t]he executive power shall be
689
vested in the President of the Philippines” [Art. VII, Sec. 1], and “[t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by law” [Art. VIII,
Sec. 1.] These provisions not only establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out “a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all the judicial power which
may be exercised under the government.” [At 631-632.] If this can be said of the legislative
power which is exercised by two chambers with a combined membership of more than two
hundred members and of the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official—the President.
As stated above, the Constitution provides that “[t]he executive power shall be vested in the
President of the Philippines.” [Art. VII, Sec. 1]. However, it does not define what is meant by
“executive power” although in the same article it touches on the exercise of certain powers by
the President, i.e.,the power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the commander-in-chief
clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty
with the concurrence of Congress, the power to contract or guarantee foreign loans, the power
to enter into treaties or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Secs. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the
framers of the Constitution intend that the President shall exercise those specific powers and no
other? Are these enumerated powers the breadth and scope of “executive power”? Petitioners
advance the view that the President’s powers are limited to those specifically enumerated in the
1987 Constitution. Thus, they assert: “The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusio unius est exclusio alterius.”
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[Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument brings to mind the institution of
the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the
same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
We encounter this characteristic of Article II in its opening words: “The executive power
shall be vested in a President of the United States of America.” x x x. [The President: Office and
Powers, 1787-1957,pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who
held the office from Washington to the early 1900’s, and the swing from the presidency by
commission to Lincoln’s dictatorship, he concluded that “what the presidency is at any particular
moment depends in important measure on who is President.” [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. It remained, of course, an
agency of government subject to unvarying demands and duties no matter who was President.
But, more than most agencies of government, it changed shape, intensity and ethos according
to the man in charge. Each President’s distinctive temperament and character, his values,
standards, style, his habits, expectations, idiosyncrasies, compulsions, phobias recast the White
_______________
**
The Philippine presidency under the 1935 Constitution was patterned in large measure
after the American presidency. But at the outset, it must be pointed out that the Philippine
government established under the constitutions of 1935, 1973 and 1987 is a unitary government
with general powers unlike that of the United States which is a federal government with limited
and enumerated powers. Even so, the powers of the president of the United States have
through the years grown, developed and taken shape as students of that presidency have
demonstrated.
691
House and pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered from President to President.
Above all, the way each President understood it as his personal obligation to inform and involve
the Congress, to earn and hold the confidence of the electorate and to render an accounting to
the nation and posterity determined whether he strengthened or weakened the constitutional
order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather,
that the consideration of tradition and the development of presidential power under the different
constitutions are essential for a complete understanding of the extent of and limitations to the
President’s powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the parliamentary type, with the President as
a mere figurehead, but through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that “executive power” is the power to enforce
the laws, for the President is head of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g.,his power over the country’s foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of “executive power.” Corollarily, the powers of the
President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In
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other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. Thus, in the landmark decision of Springer v.
Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the
Governor-General of the Philippines and the Legislature may vote the shares of stock held by
the Government to elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:
... Here the members of the legislature who constitute a majority of the “board” and “committee”
respectively, are not charged with the performance of any legislative functions or with the doing
of anything which is in aid of performance of any such functions by the legislature. Putting aside
for the moment the question whether the duties devolved upon these members are vested by
the Organic Act in the Governor-General, it is clear that they are not legislative in character, and
still more clear that they are not judicial. The fact that they do not fall within the authority of
either of these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided. . . . [At 202-203; italics
supplied.]
We are not unmindful of Justice Holmes’ strong dissent. But in his enduring words of dissent we
find reinforcement for the view that it would indeed be a folly to construe the powers of a branch
of government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. x x x.
xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive action
with mathematical precision and divide the branches into watertight compartments, were it ever
so desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210-211.]
693
The Power Involved
The Constitution declares among the guiding principles that “[t]he prime duty of the Government
is to serve and protect the people” and that “[t]he maintenance of peace and order, the
protection of life, liberty, and property, and the promotion of the general welfare are essential for
the enjoyment by all the people of the blessings of democracy.” [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the
protection of life, liberty and property, and the promotion of the general welfare are essentially
ideals to guide governmental action. But such does not mean that they are empty words. Thus,
in the exercise of presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these principles, among other things,
and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to
the Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that “[s]overeignty
resides in the people and all government authority emanates from them.” [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to
the country are the deposed dictator and his family at whose door the travails of the country are
laid and from whom billions of dollars believed to be illgotten wealth are sought to be recovered.
The constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and of
694
expression, although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-
707, October 7, 1988].
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the President’s
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbidden by the Constitution or the laws
that the needs of the nation demand [SeeCorwin,supra,at 153]. It is a power borne by the
President’s duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the President’s duty to take care that the laws are faithfully executed [seeHyman, The
American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President’s powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the peace
is not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way diminished by the relative want of
an emergency specified in the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be said to exclude the
President’s exercising as Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcoses from returning
has been recognized by mem-
695
bers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines “as a genuine unselfish gesture for true national reconciliation and as
irrevocable proof of our collective adherence to uncompromising respect for human rights under
the Constitution and our laws.” [House Resolution No. 1342, Rollo, p. 321.] The Resolution does
not question the President’s power to bar the Marcoses from returning to the Philippines, rather,
it appeals to the President’s sense of compassion to allow a man to come home to die in his
country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to
return to the Philippines cannot be considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case
law which clearly never contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those residual unstated powers of
the President which are implicit in and correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such request or demand should submit
to the exercise of a broader discretion on the part of the President to determine whether it must
be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.” [Art. VIII, Sec. 1.] Given this wording, we cannot
agree with the Solicitor General that the issue constitutes a political question which is beyond
the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. But nonetheless there remain issues beyond
the Court’s jurisdiction the determination of which is exclusively for the President, for
696
Congress or for the people themselves through a plebiscite or referendum. We cannot, for
example, question the President’s recognition of a foreign government, no matter how
premature or improvident such action may appear. We cannot set aside a presidential pardon
though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we
amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the
political question doctrine. The deliberations of the Constitutional Commission cited by
petitioners show that the framers intended to widen the scope of judicial review but they did not
intend courts of justice to settle all actual controversies before them. When political questions
are involved, the Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose
action is being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature or by law is
for the latter alone to decide. In this light, it would appear clear that the second paragraph of
Article VIII, Section 1 of the Constitution, defining “judicial power,” which specifically empowers
the courts to determine whether or not there has been a grave abuse of discretion on the part of
any branch or instrumentality of the government, incorporates in the fundamental law the ruling
in Lansang v. Garcia[G.R. No. L-33964, December 11, 1971, 42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of
the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is supreme within his own sphere.
However, the separation of powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under which the Executive is
supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme.
697
In the exercise of such authority, the function of the Court is merely to check—not to supplant—
the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. . . .
[At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases
for the President to conclude that it was in the national interest to bar the return of the Marcoses
to the Philippines. If such postulates do exist, it cannot be said that she has acted, or acts,
arbitrarily or that she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts
revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the
Philippines and the National Security Adviser, wherein petitioners and respondents were
represented, there exist factual bases for the President’s decision.
The Court cannot close its eyes to present realities and pretend that the country is not
besieged from within by a wellorganized communist insurgency, a separatist movement in
Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to mention only a few. The documented history
of the efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in
this ponencia bolsters the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The
military establishment has given assurances that it could handle the threats posed by particular
groups. But it is the catalytic effect of the return of the Marcoses that may prove to be the
proverbial final straw that would break the camel’s back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a serious
threat to the national interest and welfare and in prohibiting their return.
698
It will not do to argue that if the return of the Marcoses to the Philippines will cause the
escalation of violence against the State, that would be the time for the President to step in and
exercise the commander-in-chief powers granted her by the Constitution to suppress or stamp
out such violence. The State, acting through the Government, is not precluded from taking pre-
emptive action against threats to its existence if, though still nascent, they are perceived as apt
to become serious and direct. Protection of the people is the essence of the duty of
government. The preservation of the State—the fruition of the people’s sovereignty—is an
obligation in the highest order. The President, sworn to preserve and defend the Constitution
and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from
the hardships brought about by the plunder of the economy attributed to the Marcoses and their
close associates and relatives, many of whom are still here in the Philippines in a position to
destabilize the country, while the Government has barely scratched the surface, so to speak, in
its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions.
Then, We cannot ignore the continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles and stagnates development
and is one of the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily within the ambit of
judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses
would wipe away the gains achieved during the past few years and lead to total economic
collapse. Given what is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of former President
Marcos and his family at the present time and under present circumstances poses a serious
threat to national interest and welfare and in prohibiting their return to the Philippines, the
699
instant petition is hereby DISMISSED.
SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Me-dialdea and Regalado, JJ.,
concur.
Fernan, C.J., See separate concurring opinion.
Gutierrez, Jr., Cruz, Padilla and Sarmiento, JJ., See dissent.
Paras, J., I dissent in a separate opinion.
Feliciano, J., On leave—voted to grant petition when the case was deliberated upon.
Bidin, J., I join in the dissent of Mr. Justice Hugo Gutierrez, Jr.
FERNAN, C.J., Concurring Opinion
“The threats to national security and public order are real—the mounting Communist
insurgency, a simmering separatist movement, a restive studentry, widespread labor disputes,
militant farmer groups. x x x. Each of these threats is an explosive ingredient in a steaming
cauldron which could blow up if not handled properly.”1
These are not my words. They belong to my distinguished colleague in the Court, Mr.
Justice Hugo E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to
the exhaustive and well-written ponenciaof Mme. Justice Irene R. Cortés.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely
from a particular constitutional clause or article or from an express statutory grant. Their limits
are likely to depend on the imperatives of events and contemporary imponderables rather than
on abstract theories of law. History and time-honored principles of constitutional law have
_______________
1
From the speech “Restrictions on Human Rights—States of Emergency, National
Security, Public Safety and Public Order” delivered at the Lawasia Seminar on Human Rights,
Today and Tomorrow: The Role of Human Rights Commissions and Other Organs, at the
Manila Hotel on August 27, 1988.
700
conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: “residual,” “inherent,” “moral,”
“implied,” “aggregate,” “emergency.” Whatever they may be called, the fact is that these powers
exist, as they must if the governance function of the Executive Branch is to be carried out
effectively and efficiently. It is in this context that the power of the President to allow or disallow
the Marcoses to return to the Philippines should be viewed. By reason of its impact on national
peace and order in these admittedly critical times, said question cannot be withdrawn from the
competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a
clear and present danger to public order and safety. One needs only to recall the series of
destabilizing actions attempted by the so-called Marcos loyalists as well as the ultra-rightist
groups during the EDSA Revolution’s aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the People’s
Power Revolution. Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by
Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the Manila Hotel
to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The public
disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo
incidents. Military rebels waged simultaneous offensives in different parts of Metro Manila and
Sangley Point in Cavite. A hundred rebel soldiers took over Channel 7 and its radio station
DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group struck at
Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy
hostage. Troops on board several vehicles attempted to enter Gate 1 of Camp Aguinaldo even
as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced
their way through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having
701
failed to convince their incarcerated members to unite in their cause, had to give up nine (9)
hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the
military led by Col. Gregorio “Gringo” Honasan who remains at large to date, this most serious
attempt to wrest control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered
firearms and ammunition from the Camp Crame Armory during a raid conducted in June 1988.
Most of the group members were, however, captured in Antipolo, Rizal. The same group was
involved in an unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos
to the country.
A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different
Metro Manila areas for the projected link-up of Marcos military loyalist troops with the group of
Honasan. The pseudo “people power” movement was neutralized thru checkpoints set up by the
authorities along major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their
occurrence militates heavily against the wisdom of allowing the Marcoses’ return. Not only will
the Marcoses’ presence embolden their followers toward similar actions, but any such action
would be seized upon as an opportunity by other enemies of the State, such as the Communist
Party of the Philippines and the NPA’s, the Muslim secessionists and extreme rightists of the
RAM, to wage an offensive against the government. Certainly, the state through its executive
branch has the power, nay, the responsibility and obligation, to prevent a grave and serious
threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be
remembered that the ouster of
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the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result
of the unprecedented “people’s power” revolution. Millions of our people braved military tanks
and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and
money to put an end to an evidently untenable claim to power of a dictator. The removal of the
Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of
the present administration, a realization of and obedience to the people’s will.
Failing in legal arguments for the allowance of the Marcoses’ return, appeal is being made
to sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed
for an individual’s wish to die in his own country. Verily in the balancing of interests, the scales
tilt in favor of presidential prerogative, which we do not find to have been gravely abused or
arbitrarily exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J., Dissenting Opinion
“The Constitution xxx is a law for rulers and people, equally in war and in peace, and covers
with the shield of its protection all classes of men, at all times, and under all circumstances. No
doctrine involving more pernicious consequences was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great exigencies of government.” (Ex
Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte
Milligan as self-evident truth. But faced with a hard and delicate case, we now hesitate to give
substance to their meaning. The Court has permitted a basic freedom enshrined in the Bill of
Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same
guarantee of freedom for both unloved and despised persons on one hand and the rest who are
not so
703
stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a
precedent. We are interpreting the Constitution for only one person and constituting him into a
class by himself. The Constitution is a law for all classes of men at all times. To have a person
as one class by himself smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of
rights and not of power. Mr. Marcos is insensate and would not live if separated from the
machines which have taken over the functions of his kidneys and other organs. To treat him at
this point as one with full panoply of power against whom the forces of Government should be
marshalled is totally unrealistic. The Government has the power to arrest and punish him. But
does it have the power to deny him his right to come home and die among familiar
surroundings?
Hence, this dissent.
The Bill of Rights provides:
“Sec.6.The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.” (Italics supplied, Section 6, Art. III, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national
security and public safety which is hauntingly familiar because it was pleaded so often by
petitioner Ferdinand E. Marcos to justify his acts under martial law. There is, however, no
showing of the existence of a law prescribing the limits of the power to impair and the occasions
for its exercise. And except for citing breaches of law and order, the more serious of which were
totally unrelated to Mr. Marcos and which the military was able to readily quell, the respondents
have not pointed to any grave exigency which permits the use of untrammeled Governmental
power in this case and the indefinite suspension of the constitutional right to travel.
The respondents’ basic argument is that the issue before us is a political question beyond
our jurisdiction to consider. They
704
contend that the decision to ban former President Marcos, and his family on grounds of national
security and public safety is vested by the Constitution in the President alone. The
determination should not be questioned before this Court. The President’s finding of danger to
the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
“It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been conferred on the
courts by express constitutional or statutory provisions. It is not so easy, however, to define the
phrase political question, nor to determine what matters fall within its scope. It is frequently used
to designate all questions that lie outside the scope of the judicial power. More properly,
however, it means those questions which, under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government.”
We defined a political question in Tañada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
“‘In short, the term ‘political question’ connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to ‘those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government. It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure.”
The most often quoted definition of political question was made by Justice William J. Brennan,
Jr., who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,
82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated
in Baker v. Carrare:
“It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a
705
political question, which identifies it as essentially a function of the separation of powers.
Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or potentiality of embarassment from
multifarious pronouncements by various departments on one question.”
For a political question to exist, there must be in the Constitution a power vested exclusively in
the President or Congress, the exercise of which the court should not examine or prohibit. A
claim of plenary or inherent power against a civil right which claim is not found in a specific
provision is dangerous. Neither should we validate a roving commission allowing public officials
to strike where they please and to override everything which to them represents evil. The entire
Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or
vests the determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law
has been enacted specifying the circumstances when the right may be impaired in the interest
of national security or public safety. The power is in Congress, not the Executive.
The closest resort to a textually demonstrable constitutional commitment of power may be
found in the commander-in-chief clause which allows the President to call out the armed forces
in case of lawless violence, invasion or rebellion and to suspend the privilege of the writ of
habeas corpus or proclaim martial law in the event of invasion or rebellion, when the public
safety requires it.
There is, however, no showing, not even a claim that the followers of former President
Marcos are engaging in rebellion or that he is in a position to lead them. Neither is it claimed
that there is a need to suspend the privilege of the writ of habeas
706
corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure,
there may be disturbances but not of a magnitude as would compel this Court to resort to a
doctrine of non-justiceability and to ignore a plea for the enforcement of an express Bill of Rights
guarantee.
The respondents themselves are hardpressed to state who or what constitutes a Marcos
“loyalist.” The constant insinuations that the “loyalist” group is heavily funded by Mr. Marcos and
his cronies and that the “loyalists” engaging in rallies and demonstrations have to be paid
individual allowances to do so constitute the strongest indication that the hard core “loyalists”
who would follow Marcos right or wrong are so few in number that they could not possibly
destabilize the government, much less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a “loyalist.” It
is in the best of Filipino customs and traditions to allow a dying person to return to his home and
breath his last in his native surroundings. Out of the 103 Congressmen who passed the House
resolution urging permission for his return, there are those who dislike Mr. Marcos intensely or
who suffered under his regime. There are also many Filipinos who believe that in the spirit of
national unity and reconciliation Mr. Marcos and his family should be permitted to return to the
Philippines and that such a return would deprive his fanatic followers of any further reason to
engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light
of the constitutional guarantee of liberty of abode and the citizen’s right to travel as against the
respondents’ contention that national security and public safety would be endangered by a grant
of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to
the President, there is likewise no dearth of decisional data, no unmanageable standards which
stand in the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing
the same within the limits prescribed by law may be impaired only upon a lawful order of a
court.Not by an executive officer. Not even by the President. Section 6 further provides that the
right to travel, and this
707
obviously includes the right to travel out of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law.
There is no law setting the limits on a citizen’s right to move from one part of the country to
another or from the Philippines to a foreign country or from a foreign country to the Philippines.
The laws cited by the Solicitor General—immigration, health, quarantine, passports, motor
vehicle, destierro, probation, and parole—are all inapplicable insofar as the return of Mr. Marcos
and family is concerned. There is absolutely no showing how any of these statutes and
regulations could serve as a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We
would simply be applying the Constitution, in the preservation and defense of which all of us in
Government, the President and Congress included, are sworn to participate. Significantly, the
President herself has stated that the Court has the last word when it comes to constitutional
liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation
of the political question doctrine by government lawyers. (See Morales, Jr. v. Ponce Enrile, 121
SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments,
Congress, and the judiciary criticized this Court for using what they felt was a doctrine of
convenience, expediency, utility or subservience.Every major challenge to the acts of petitioner
Ferdinand E. Marcos under his authoritarian regime—the proclamation of martial law, the
ratification of a new constitution, the arrest and detention of “enemies of the State” without
charges being filed against them, the dissolution of Congress and the exercise by the President
of legislative powers, the trial of civilians for civil offenses by military tribunals, the seizure of
some of the country’s biggest corporations, the taking over or closure of newspaper offices,
radio and television stations and other forms of media, the proposals to amend the Constitution,
etc.—was invariably met by an invocation that the petition involved a political question. It is
indeed poetic justice that the political question
708
doctrine so often invoked by then President Marcos to justify his acts is now being used against
him and his family. Unfortunately, the Court should not and is not allowed to indulge in such a
persiflage. We are bound by the Constitution.
The dim view of the doctrine’s use was such that when the present Constitution was
drafted, a broad definition of judicial power was added to the vesting in the Supreme Court and
statutory courts of said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
“Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.”
This new provision was enacted to preclude this Court from using the political question doctrine
as a means to avoid having to make decisions simply because they are too controversial,
displeasing to the President or Congress, inordinately unpopular, or which may be ignored and
not enforced.
The framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional difficulties,
complexity of issues, momentousness of consequences or a fear that it was extravagantly
extending judicial power in the cases where it refused to examine and strike down an exercise
of authoritarian power. Parenthetically, at least two of the respondents and their counsel were
among the most vigorous critics of Mr. Marcos (the main petitioner) and his use of the political
question doctrine. The Constitution was accordingly amended. We are now precluded by its
mandate from refusing to invalidate a political use of power through a convenient resort to the
political question doctrine. We are compelled to decide what would have been non-justiceable
under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a
plebiscite may decide. Definitely, the issue before us is not one
709
of them.
The Constitution requires the Court “to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction.”
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately,
considerations of national security do not readily lend themselves to the presentation of proof
before a court of justice. The vital information essential to an objective determination is usually
highly classified and it cannot be rebutted by those who seek to overthrow the government. As
early as Barcelon v. Baker (5 Phil. 87, 93 [1905]), the Court was faced with a similar situation. It
posed a rhetorical question. If after investigating conditions in the Archipelago or any part
thereof, the President finds that public safety requires the suspension of the privilege of the writ
of habeas corpus, can the judicial department investigate the same facts and declare that no
such conditions exist?
In the effort to follow the “grave abuse of discretion” formula in the second paragraph of
Section 1, Article VIII of the Constitution, the court granted the Solicitor General’s offer that the
military give us a closed door factual briefing with a lawyer for the petitioners and a lawyer for
the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos
in Morales, Jr. v. Enrile, (121 SCRA 538, 592 [1983]):
“How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truthful words of Montenegro, with
its very limited machinery [it] cannot be in better position [than the Executive Branch] to
ascertain or evaluate the conditions prevailing in the Archipelago? (At p. 887). The answer is
obvious. It must rely on the Executive Branch which has the appropriate civil and military
machinery for the facts. This was the method which had to be used in Lansang. This Court
relied heavily on classified information supplied by the military. Accordingly, an incongruous
situation obtained. For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch supplied
information to support its position and this
710
Court was in no situation to disprove them. It was a case of the defendant judging the suit. After
all is said and done, the attempt by this Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
“There is still another reason why this Court should maintain a detached attitude and refrain
from giving the seal of approval to the act of the Executive Branch. For it is possible that the
suspension of the writ lacks popular support because of one reason or another. But when this
Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the
facts given to it by the Executive Branch) it in effect participates in the decision-making process.
It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an
unpopular act.”
The other method is to avail of judicial notice. In this particular case, judicial notice would be the
only basis for determining the clear and present danger to national security and public safety.
The majority of the Court has taken judicial notice of the Communist rebellion, the separatist
movement, the rightist conspiracies, and urban terrorism. But is it fair to blame the present day
Marcos for these incidents? All these problems are totally unrelated to the Marcos of today and,
in fact, are led by people who have always opposed him. If we use the problems of Government
as excuses for denying a person’s right to come home, we will never run out of justifying
reasons. These problems or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order
to ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we
forced to fall back upon judicial notice of the implications of a Marcos return to his home to
buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and
present danger to national security and public safety will arise if Mr. Marcos and his family are
allowed to return to the Philippines. It was only after the present petition was filed that the
alleged danger to national security and public safety conveniently surfaced in the respondents’
pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to—
(1) national welfare and interest and (2) the continuing need to preserve the gains achieved in
terms of recovery and stability. (See page 7,
711
respondents’ Comment at page 73 of Rollo). Neither ground satisfies the criteria of national
security and public safety. The President has been quoted as stating that the vast majority of
Filipinos support her position. (The Journal, front page, January 24, 1989) We cannot validate
her stance simply because it is a popular one. Supreme Court decisions do not have to be
popular as long as they follow the Constitution and the law. The President’s original position
“that it is not in the interest of the nation that Marcos be allowed to return at this time” has not
changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the President is
reported to have stated that “considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years” in justifying her
firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page,
February 15, 1989). “Interest of the nation,” “national good,” and “preserving economic and
political gains,” cannot be equated with national security or public order. They are too generic
and sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights
commands that the right to travel may not be impaired except on the stated grounds of national
security, public safety, or public health and with the added requirement that such impairment
must be “as provided by law.” The constitutional command cannot be negated by mere
generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples’ Army.
Feeding as it does on injustice, ignorance, poverty, and other aspects at underdevelopment, the
Communist rebellion is the clearest and most present danger to national security and
constitutional freedoms. Nobody has suggested that one way to quell it would be to catch and
exile its leaders, Mr. Marcos himself was forced to flee the country because of “peoples’ power.”
Yet, there is no move to arrest and exile the leaders of student groups, teachers’ organizations,
peasant and labor federations, transport workers, and government unions whose threatened
mass actions would definitely endanger national security and the stability of government. We fail
to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the
hard core loyalists, and other
712
dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos
come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying
point in the coming of Mr. Marcos.
The “confluence theory” of the Solicitor General or what the majority calls “catalytic effect,”
which alone sustains the claim of danger to national security is fraught with perilous
implications. Any difficult problem or any troublesome person can be substituted for the Marcos
threat as the catalysing factor. The alleged confluence of NPAs, secessionists, radical elements,
renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem,
the Government can state that the situation threatens a confluence of rebel forces and proceed
to ride roughshod over civil liberties in the name of national security. Today, a passport is
denied. Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human
rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito
Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow’s
pariahs? I deeply regret that the Court’s decision to use the political question doctrine in a
situation where it does not apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed
and that the military is on top of the situation. Where then is the clear danger to national
security? The Court has taken judicial notice of something which even the military denies. There
would be severe strains on military capabilities according to General de Villa. There would be
set-backs in the expected eradication of the Communist threat. There would be other serious
problems but all can be successfully contained by the military. I must stress that no reference
was made to a clear and present danger to national security as would allow an overriding of the
Bill of Rights.
The Solicitor General’s argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one’s abode has constrained the President
713
to fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to
warrant serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever
the Batasang Pambansa failed or was unable to act adequately on any matter for any reason
that in his judgment required immediate action. When the Bill of Rights provides that a right may
not be impaired except in the interest of national security, public safety, or public health and
further requires that a law must provide when such specifically defined interests are prejudiced
or require protection, the inaction of Congress does not give reason for the respondents to
assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not
obstruct us from ruling against an unconstitutional assertion of power by Philippine officials. Let
the United States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of
traveling while hooked up to machines which have taken over the functions of his heart, lungs,
and kidneys may hasten his death. The physical condition of Mr. Marcos does not justify our
ignoring or refusing to act on his claim to a basic right which is legally demandable and
enforceable. For his own good, it might be preferable to stay where he is. But he invokes a
constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so
would run counter to a constitutional guarantee. Besides, the petitioners are not asking for
passports and nothing else. Any travel documents or any formal lifting of the Marcos ban as
would allow international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel.
I do not think we should differentiate the right to return home from the right to go abroad or to
move around in the Philippines. If at all, the right to come home must be more preferred than
any other aspect of the right to travel. It was precisely the banning by Mr. Marcos of the right to
travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other “undesirables” and
“threats to national security” during that unfortunate period which led the framers
714
of our present Constitution not only to re-enact but to strengthen the declaration of this right.
Media often asks, “what else is new?” I submit that we now have a freedom loving and humane
regime. I regret that the Court’s decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or
those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of
former dictators who were barred by their successors from returning to their respective
countries. There is no showing that the countries involved have constitutions which guarantee
the liberty of abode and the freedom to travel and that despite such constitutional protections,
the courts have validated the “ban a return” policy. Neither is it shown that the successors of the
listed dictators are as deeply committed to democratic principles and as observant of
constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a
campaign to sow discord and to divide the nation. Opposition to the government no matter how
odious or disgusting is, however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked—Is the
Government helpless to defend itself against a threat to national security? Does the President
have to suspend the privilege of the writ of habeas corpus or proclaim martial law? Can she not
take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under existing law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of
those powers because the Bill of Rights says so. There is no law prescribing exile in a foreign
land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J., Dissenting Opinion
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live—
and die—in his own
715
country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt and undeserving of the
very liberties he flouted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor
can we resolve it. The question we must answer is whether or not, assuming that Marcos is
permitted to leave Hawaii (which may depend on the action we take today), the respondents
have acted with grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to
offer, but could not, that the petitioner’s return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27, 1989, asked the Solicitor General
if the government was prepared to prove the justification for opposing the herein petition, i.e.,
that it had not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified
nature of the information expected, scheduled a closed-door hearing on July 25, 1988. The
Solicitor General and three representatives from the military appeared for the respondents,
together with former Senator Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of
Marcos dead or alive would pose a threat to the national security as it had alleged. The fears
expressed by its representatives were based on mere conjectures of political and economic
destabilization without any single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist “factual bases
for the President’s decision” to bar Marcos’s return. That is not my recollection of the
impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the
specific powers granted by the Constitution, the Court is taking a great leap backward and
reinstating the discredited doctrine announced in Planas v. Gil (67 Phil. 62). This does not
square with the announced policy of the Constitutional Commission, which was precisely to limit
716
rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black’s wry observation in the Steel Seizure Case (343 U.S. 579)
that if it was true that the President had been granted the totality of executive power, “it is
difficult to see why our forefathers bothered to add several specific items, including some trifling
ones, . . . I cannot accept the view that this clause is a grant in bulk of all conceivable executive
power but regard it as an allocation to the presidential office of the generic powers thereafter
stated.”
I have no illusion that the stand I am taking will be met with paeans of praise, considering
that Marcos is perhaps the most detested man in the entire history of our country. But we are
not concerned here with popularity and personalities. As a judge, I am not swayed by what
Justice Cardozo called the “hooting throng” that may make us see things through the prisms of
prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all
personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the
established facts and the applicable law and not of wounds that still fester and scars that have
not healed. And not even of fear, for fear is a phantom. That phantom did not rise when the
people stood fast at EDSA—against the threat of total massacre—in defense at last of their
freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a
professor of Constitutional Law. These principles have not changed simply because I am now
on the Court or a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against
the prohibitions of the government then, Marcos is entitled to the same right to travel and the
liberty of abode that his adversary invoked. These rights are guaranteed by the Constitution
to all individuals, including the patriot and the homesick and the prodigal son returning, and
tyrants and charlatans and scoundrels of every stripe.
I vote to grant the petition.
717
PARAS, J., Dissenting Opinion
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be
also called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to
return to the Philippines may be resolved by answering two simple questions: Does he have the
right to return to his own country?; and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the
Universal Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the
right to return to his own country except only if prevented by the demands of national safety and
national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and
all they can rely on is sheer speculation. True, there is some danger but there is no showing as
to the extent.
It is incredible that one man alone together with his family, who had been ousted from this
country by popular will, can arouse an entire country to rise in morbid sympathy for the cause he
once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the
members of his family be under house arrest in his hometown in Ilocos Norte, and should
President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for
national discipline, and for human compassion.
PADILLA, J., Dissenting Opinion
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between
the right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right
718
of the Philippine Government to bar such return in the interest of national security and public
safety. In this context, the issue is clearly justiciable involving, as it does, colliding assertions of
individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion,
incorporated in the 1987 Constitution, the new provision on the power of Judicial Review, viz:
“Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.” Article VIII, Section
1, par. 2; (italics supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to
travel which, in the language of the Constitution, shall not be impaired “except in the interest of
national security, public safety, or public health, as may be provided by law” (Art. III, Sec. 6).
That the right to travel comprises the right to travel within the country, to travel out of the country
and to return to the country (Philippines), is hardly disputable. Short of all such components, the
right to travel is meaningless. The real question arises in the interpretation of the qualifications
attached by the Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation,the right to travel is
absolute. I do not agree. It is my view that, with or without restricting legislation, the interest of
national security, public safety or public health can justify and even require restrictions on the
right to travel, and that the clause “as may be provided by law” contained in Article III, Section 6
of the 1987 Constitution merely declares a constitutional leave or permission for Congress to
enact laws that may restrict the right to travel in the interest of national security, public safety or
public health. I do not, therefore, accept the petitioners’ submission that, in the absence of
enabling legislation, the Philippine Government is powerless to restrict travel even when such
restriction is demanded by national security, public safety or public health. The power of the
State, in particu-
719
lar cases, to restrict travel of its citizens finds abundant support in the police power of the State,
which may be exercised to preserve and maintain government as well as promote the general
welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time,
to restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i. e., the right to return to the country.1 Have the respondents presented sufficient
evidence to offset or override the exercise of this right invoked by Mr. Marcos? Stated
differently, have the respondents shown to the Court sufficient factual bases and data which
would justify their reliance on national security and public safety in negating the right to return
invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and
assessed the “briefing” given the Court by the highest military authorities of the land last 28 July
1989. I have searched, but in vain, for convincing evidence that would defeat and overcome the
right of Mr. Marcos as a Filipino to return to this country. It appears to me that the
apprehensions entertained and expressed by the respondents, including those conveyed
through the military, do not, with all due respect, escalate to proportions of national security or
public safety. They appear to be more speculative than real, obsessive rather than factual.
Moreover, such apprehensions even if translated into realities, would be “under control,” as
admitted to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my opinion, will
know how to handle any situation brought about by a political recognition of Mr. Marcos’ right to
return, and his actual return, to this country. The Court, in short, should not accept respondents’
general apprehensions, concerns and perceptions at face value, in the light of a countervailing
and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.
_______________
1
In addition, he invokes the right as a basic human right recognized by the Universal
Declaration of Human Rights.
720
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights.2
As a member of the United Nations, the Philippines has obligations under its charter. By
adopting the generally accepted principles of international law as part of the law of the land,
(Art. II, Sec. 2 of the Constitution), the Philippine government cannot just pay lip service to Art.
13, par. 2 of the Universal Declaration of Human Rights which provides that everyone has the
right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which
states that “no one shall be arbitrarily deprived of the right to enter his own country.” (italics
supplied) “Arbitrary” or “arbitrarily” was specifically chosen by the drafters of the
Covenant3hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of
justice which falls short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the
President, have raised the argument of “national security” and “public safety,” it is the duty of
this Court to unquestioningly yield thereto, thus casting the controversy to the realm of a political
question. I do not agree. I believe that this is one case where the human and constitutional right
invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much
less, nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution
when it allows the theory of political question to serve as a convenient, and yet, lame excuse for
evading what,
_______________
2
S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations:
Underdevelopment, Catastrophies and Armed Conflicts, The International Dimensions of
Human Rights, Vol. 1 Unesco, 1982, pp. 175-204.
3
P. Hassan, The Word “Arbitrary” as used in the Universal Declaration of Human Rights:
“Illegal or Unjust”, 10 Harv. Int. L.J., p. 225 (1969).
4
F.C. Newman and K. Vasak, Civil and Political Rights, The International Dimensions of
Human Rights, pp. 135-166.
721
to me, is its clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines
in 1983 and, at the same time, credibly deny the right of Mr. Marcos, also a Filipino, to return to
the Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it
has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national
interest, that the mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political
or otherwise, the following are the cogent and decisive propositions in this case—
 1. 1.Mr. Marcos is a Filipino and, as such, entitled to return to, 5die and be buried in this
country;
2. 2.respondents have not shown any “hard evidence” or convincing proof why his
right as a Filipino to return should be denied him. All we have are general
conclusions of “national security” and “public safety” in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;
3. 3.the issue of Marcos’ return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the “cold neutrality of an impartial judge.” It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
_______________
5
As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United
States, is beyond the issues in this case; similarly, as to how the Philippine government should
deal with Mr. Marcos upon his return is also outside of the issues in this case.
722
SARMIENTO, J., Dissenting Opinion
I vote to grant the petition.
The only issue that saddles the Court is simply: “whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.”1 I therefore take exception to allusions2 anent “the capacity of the Marcoses to
stir trouble even from afar.”3I have legitimate reason to fear that my brethren, in passing
judgment on the Marcoses (insofar as their “capacity to stir trouble” is concerned), have
overstepped the bounds of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the “real issues” facing the Court:
“The right to return to one’s country,” pitted against “the right of travel and freedom of abode”,
and their supposed distinctions under international law, as if such distinctions, under
international law, in truth and in fact exist. There is only one right involved here, whether under
municipal or international law: the right of travel, whether within one’s own country, or to
another, and the right to return thereto. The Constitution itself makes no distinctions; let, then,
no one make a distinction. Ubi lex non distinguit, nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have
the power to deny a citizen his right to travel (back to the country or to another)? It is a question
that, in essence, involves the application, and no more, of the provisions of the 1987
Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law.4
_______________
1
Decision, 4.
2
Seesupra,1-4.
3
Supra,2.
4
CONST., art. III, sec. 6.
723
The majority says, with ample help from American precedents, that the President is possessed
of the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of “executive power.” Corollarily, the powers of the
President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated.5
So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic
principles in arriving at a decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the
people have surrendered their sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegated by the people forget and the
servants of the people become rulers, the Constitution reminds everyone that “[s]overeignty
resides in the people and all government authority emanates from them.” [Art. II, Sec. 1.] 6
And finally:
To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President’s
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power
of the President but also his duty to do anything not forbiden by the Constitution or the laws that
the needs of the nation demanded [See Corwin, supra,at 153]. It is a power borne by the
President’s duty to preserve and defend the
_______________
5
Decision, supra, 18; emphasis in the original.
6
Supra,20-21.
724
Constitution. It also may be viewed as a power implicit in the President’s duty to take care that
the laws are faithfully executed [See Hyman, The American President, where the author
advances the view that an allowance of discretionary power is unavoidable in any government
and is best lodged in the President].7
I am not persuaded.
I.
First: While the Chief Executive exercises powers not found expressly in the Charter, but has
them by constitutional implication,*the latter must yield to the paramountcy of the Bill of Rights.
According to Fernando: “A regime of constitutionalism is thus unthinkable without an assurance
of the primacy of a bill of rights. Precisely a constitution exists to assure that in the discharge of
the governmental functions, the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim, a constitution must lay down the boundaries
beyond which lies forbidden territory for state action.”8
My brethren have not demonstrated, to my satisfaction, how the President may override the
direct mandate of the fundamental law. It will not suffice, so I submit, to say that the President’s
plenitude of powers, as provided in the Constitution, or by sheer constitutional implication,
prevail over express constitutional commands. “Clearly,” so I borrow J.B.L. Reyes, in his own
right, a titan in the field of public law, “this argument . . . rests . . . not upon the text of the
[Constitution] . . . but upon a mere inference therefrom.” 9 For if it were, indeed, the intent of the
Charter to create an exception, that is, by Presidential action, to the right of travel or liberty of
abode and of changing the same—other than what it explicitly says already (“limits prescribed
by law”10or “upon lawful order of the court”11)—the
_______________
 7
Supra,21-22.
*
But see Cruz, J., Dissenting.
8
FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).
9
Republic v. Quasha, No. L-30299, August 17, 1972, 46 SCRA 160, 169.
10
CONST.,supra.
11
Supra.
725
Charter could have specifically declared so. As it is, the lone deterrents to the right in question
are: (1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a third
exception, that is, by Presidential initiative, it could have so averred. It would also have made
the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the
country; neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the
court, or when necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) “when
necessary in the interest of national security, public safety, or public health.”13 Arguably, the
provision enabled the Chief Executive (Marcos) to moderate movement of citizens, which,
Bernas says, justified such practices as “hamletting”, forced relocations, or the establishment of
free-fire zones.14
The new Constitution, however, so it clearly appears, has divested the Executive’s implied
power. And, as it so appears, the right may be impaired only “within the limits provided by
law.”15 The President is out of the picture.
Admittedly, the Chief Executive is the “sole” judge of all matters affecting national
security16 and foreign affairs;17 the Bill of Rights—precisely, a form of check against excesses of
_______________
12
CONST. (1973), art. IV, sec. 5.
13
Supra.
14
See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263
(1987 ed.)
15
CONST. (1987), art. III, sec. 6, supra.
16
See supra, art. VII, sec. 18.
17
See Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
726
officialdom—is, in this case, a formidable barrier against Presidential action. (Even on matters of
State security, this Constitution prescribes limits to Executive’s powers as Commanderin-Chief.)
Second: Assuming,ex hypothesi, that the President may legally act, the question that
emerges is: Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the
“national security, public safety, or public health?” What appears in the records are vehement
insistences that Marcos does pose a threat to the national good—and yet, at the same time, we
have persistent claims, made by the military top brass during the lengthy closed-door hearing on
July 25, 1989, that “this Government will not fall” should the former first family in exile step on
Philippine soil. Which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief
Executive. The Court itself must be content that the threat is not only clear, but more so,
present.18
That the President “has the obligation under the Constitution to protect the people . . .:” 19 is
an obligation open to no doubt. But the question, and so I ask again and again, is: From whom?
If we say “from Marcos,” we unravel chinks in our political armor. It also flies in the face of
claims, so confidently asserted, that “this Government will not fall” even if we allowed Marcos to
return.
It flies, finally, in the face of the fact that a good number of the henchmen, trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties.20 As I indicated, not one shred of evidence, let alone solid evidence, other than
_______________
18
See Lansang v. Garcia, Nos. L-
33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and 34339, December 11, 1971, 42
SCRA 448, 480.
19
Decision,supra, 21.
20
Supra.
727
surmises of possibilities, has been shown to justify the “balancing act” referred to. Worse, these
conjectures contradict contentions that as far as Philippine society is concerned, Marcos is
“history”.
The power of the President, so my brethren declaim, “calls for the exercise of the
President’s power as protector of peace.”21
This is the self-same falsehood Marcos foisted on the Filipino people to justify the
authoritarian rule. It also means that we are no better than he was.
That “[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence,”22 is a bigger fantasy: It not only summons the martial law
decisions of pre-“EDSA” (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter,
a Charter that has perceptibly reduced the Executive’s powers vis-a-vis its 1973 counterpart.23
II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of this dissent lost a son. ** His son’s only “offense” was that he
openly and unabatedly criticized the dictator, his associates, and his military machinery. He
would pay dearly for it; he was arrested and detained, without judicial warrant or decision, for
seven months and seven days. He was held incommunicado a greater part of the time, in the
military stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized
(prison hospital) and confined for chronic asthma. The deplorable conditions of his
imprisonment exacerbated his
_______________
21
Supra.
22
Supra,22.
23
See CONST. (1987), art. VII, sec. 18, supra.
**
Abraham (“Ditto”) Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976),
official student organ of the University of the Philippines. He was detained in the military
stockade for common criminals from January to August, 1976.
728
delicate health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial
law apparatus.
The undersigned also counts himself as one of the victims of Marcos’
ruthless apparatchiki.On August 14, 1979, he was, along with former President Diosdado
Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia, charged,
“ASSOed,” and placed under house arrest, for “inciting to sedition” and “rumor mongering,”24 in
the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a
book extremely critical of martial rule, published by him and former Congressman Concordia,
authored by President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the “condemned” book as having
violated the human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal
of Rizal. It had to take the events at “EDSA” to set them free from house arrest and these
political offenses. I am for Marcos’ return not because I have a score to settle with him. Ditto’s
death or my arrest are scores that can not be settled.
I feel the ex-President’s death abroad (presented in the dailies as “imminent”) would leave
him “unpunished” for his crimes to country and countrymen. If punishment is due, let this
leadership inflict it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and
movement and the liberty of

_______________

24
SPI No. 79-347 (“For: Violation of Presidential Decree No. 90 and Article 142 of the
Revised Penal Code, as amended”—The Judge Advocate General’s Office, AFP), Special Civil
Action, G.R. No. 54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A. Concordia,
and Abraham F. Sarmiento, Petitioners, vs. The Preliminary Investigating Panel in SPI No. 79-
347 [Hamilton B. Dimaya, Brigadier General, AFP, The Judge Advocate General, Chairman;
Leon O. Ridao, Colonel, JAGS (GSC), Deputy Judge Advocate General, Member; and Amor B.
Felipe, Colonel, JAGS (GSC) Executive Officer, Member], and the Minister of National Defense,
Respondents—Supreme Court.
729
abode.25 We would have betrayed our own ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the man’s “capacity” “to stir trouble”. Now that the shoe is on
the other foot, let no more of human rights violations be repeated against any one, friend or foe.
In a democratic framework, there is no such thing as getting even.
The majority started this inquiry on the question of power. I hold that the President, under
the present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Petition dismissed.
Note.—The exercise of even the preferred freedoms of speech and of expression, although
couched in absolute terms, admits of limits and must be adjusted to the requirements of equally
important public interests. (Zaldivar vs. Sandiganbayan, G.R. Nos. 79690-707, Oct. 7, 1988.)

——o0o——

No. L-35131. November 29, 1972.
THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT, petitioners, vs. HON.
BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII, Court of First Instance of Rizal,
MAJOR WILFREDO CRUZ, MAJOR AN. TONIO G. RELLEVE, and CAPTAIN PEDRO S.
NAVARRO of the Constabulary Offshore Action Center (COSAC), respondents.
Constitutional Iaw; Separation of Powers; International law; Court should respect
diplomatic immunities of foreign officials recognized by the government.—It is a recognized
principle of international law and under our system of separation of powers that diplomatic
immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic
immunity is recognized and affirmed by the executive branch of government as in the case at
bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion
by the principal law officer of the government, the solicitor general in this case, or other officer
acting under his direction.
International law; Treaties; Philippines is bound by the treaty respecting the privileges
and immunities of UN officials.—The Philippine Government is bound by the procedure laid
down in Article VII of the Convention on the Privilegesand
243
Immunities of the Specialized Agencies of the United Nationsfor consultations between
the Host State and the United Nations agency concerned to determine in the first instance the
fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for
other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government
and as such, has the force and effect of law.
Same; Statutory prohibition against violation of diplomatic immunities cited.—Republic
Act 75 declares as null and void writs or processes sued out or prosecuted whereby inter aliathe
person of an ambassador or public minister is arrested or imprisoned or his goods or chattels
are seized or attached and makes it a penal offense for "every person by whom the same is
obtained or prosecuted, whether as party or as attorney, and every officer concerned in
executing it "to obtain or enforce such writ or process."
ORIGINAL ACTION in the Supreme Court. Certiorari and prohibition.
The facts are stated in the opinion of the Court.
Sycip, Salazar, Luna, Manalo & Feliciano for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:
An original action for certiorari and prohibition to set aside respondent judge's refusal to quash a
search warrant issued by him at the instance of respondents COSAC '(Constabulary Offshore
Action Center) officers for the search and seizure of the personal effects of petitioner official of
the WHO (World Health Organization) notwithstanding his being entitled to diplomatic immunity,
as duly recognized by the executive branch of the Philippine Government and to prohibit
respondent judge from further proceedings in the matter.
244
Upon filing of the petition, the Court issued on June 6, 1972 a restraining order enjoining
respondents from executing the search warrant in question,
Respondents COSAC officers filed their answer joining issue against petitioners and
seeking to justify their act of applying for and securing from respondent judge the warrant for the
search and seizure of ten crates consigned to petitioner Verstuyft and stored at the Eternit
Corporation warehouse on the ground that they "contain large quantities of highly dutiable
goods" beyond the official needs of said petitioner "and the only lawful way to reach these
articles and effects for purposes of taxation is through a search warrant." 1
The Court thereafter called for the parties' memoranda in lieu of oral argument, which were
filed on August 3, 1972 by respondents and on August 21, 1972 by petitioners, and the case
was thereafter deemed submitted for decision.
It is undisputed in the record that petitioner Dr. Leonce Verstuyft, who was assigned on
December 6, 1971 by the WHO from his last station in Taipei to the Regional Office in Manila as
Acting Assistant Director of Health Services, is entitled to diplomatic immunity, pursuant to the
Host Agreement executed on July 22, 1951 between the Philippine Government and the World
Health Organization
Such diplomatic immunity carries with it, among other diplomatic privileges and immunities,
personal inviolability, inviolability of the official's properties, exemption from local jurisdiction,
and exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on January 10, 1972, they were accordingly allowed
free entry from duties and taxes. The crates were directly stored at the Eternit Corporation's
______________
1
Respondents' Answer, Rollo, p. 138.
245
warehouse at Mandaluyong, Rizal, "pending his relocation into permanent quarters upon the
offer of Mr. Berg, Vice President of Eternit who was once a patient of Dr. Verstuyft in the
Congo."2
Nevertheless, as above stated, respondent judge issued on March 3, 1972 upon application
on the same date of respondents COSAC officers search warrant No. 72-138 for alleged
violation of Republic Act 4712 amending section 3601 Of the Tariff and Customs
Code3 directing the search and seizure of the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional Director for the Western
Pacific with station in Manila, Secretary of Foreign Affairs Carlos P. Romulo, personally wired on
the same date respondent judge advising that "Dr. Verstuyft is entitled to immunity from search
in respect of his personal baggage as accorded to members of diplomatic missions" pursuant to
the Host Agreement and requesting suspension of the search warrant order "pending
clarification of the matter from the ASAC."
Respondent judge set the Foreign Secretary's request for hearing and heard the same on
March 16, 1972, but not withstanding the official plea of diplomatic immunity in-
________________
2
Citygram of March 6, 1972 of Secretary of Foreign Affairs Carlos P. Romulo to respondent
judge, Annex D, petition.
3
This penal provision of the tariff & customs code imposes a penalty of a fine of not less
than P600.00 nor more than P5000.00 and imprisonment for not less than 6 months nor more
than two years for unlawful importation and illegal possession of goods imported contrary to law,
upon "Any person who shall fraudulently import or bring into the Philippines, or assist in so
doing, any article, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate
the transportation, concealment, or sale of such article after importation, knowing the same to
have been imported contrary to law," and states that "(W)hen, upon trial for a violation of this
section, the defendant is shown to have or to have had possession of the article in question,
such possession shall be deemed sufficient evidence to authorize conviction, unless the
defendant shall explain the possession to the satisfaction of the court. x x x x x x"
246
terposed by a duly authorized representative of the Department of Foreign Affairs who furnished
the respondent judge with a list of the articles brought in by petitioner Verstuyft, respondent
judge issued his order of the same date maintaining the effectivity of the search warrant issued
by him, unless restrained by a higher court.4
Petitioner Verstuyft's special appearance on March 24, 1972 for the limited purpose of
pleading his diplomatic immunity and motion to quash search warrant of April 12, 1972 failed to
move respondent judge.
At the hearing thereof held on May 8, 1972, the Office of the Solicitor General appeared
and filed an extended comment stating the official position of the executive branch of the
Philippine Government that petitioner Verstuyft is entitled to diplomatic immunity, he did not
abuse
_______________
 4
Respondent judge's justification in his said order reads in part as follows:
"xxx xxx From the reply submitted by Captains Pedro S. Navarro and Antonio G. Relleve of the
COSAC, it appears that the articles contained in the two baggages allegedly belonging to Dr.
Verstuyft so far opened by them, are 120 bottles of assorted foreign wine and 15 tins of PX
goods which are said to be dutiable under the Customs and Tariff Code of the Philippines. The
two COSAC officers further manifested that they positively believe that there are more
contraband items in the nine other huge crates which are still unopened. xxx xxx The articles so
far found in the two crates opened by Capt. Navarro and Relleve are not mentioned in the list of
articles brought in by Dr, Verstuyft and are highly dutiable under the Customs and Tariff Code
and according to said officers they have strong reasons to believe that the other remaining
crates unopened contain contraband items. The Court is certain that the World Health
Organization would not tolerate violations of local laws by its officials and/or representatives
under a claim of immunity granted to them by the host agreement. Since the right of immunity
invoked by the Department of Foreign Affairs is admittedly relative and not absolute, and there
are strong and positive indications of violation of local laws, he Court declines to suspend the
effectivity of the search warrant issued in the case at bar. xxx xxx"
247
his diplomatic immunity,5and that court proceedings in the receiving or host State are not the
proper remedy in the case of abuse of diplomatic immunity,6
The Solicitor General accordingly joined petitioner Verstuyft's prayer for the quashal of the
search warrant Respondent judge nevertheless summarily denied quashal of the search warrant
per his order of May 9, 1972 "for the same reasons already stated in (his) aforesaid order of
March 16, 1972" disregarding Foreign Secretary Romulo's plea of diplomatic immunity on behalf
of Dr. Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft has in this Court been joined by the World
Health Organization (WHO) itself in full assertion of petitioner Verstuyft's being entitled "to all
privileges and immunities, exemptions and facilities accorded to diplomatic envoys in
accordance with international law" under section 24 of the Host Agreement.
The writs of certiorari and prohibition should issue as prayed for.
_______________
5
Aside from the Foreign Affairs Department's certification that the importation of 120 bottles
of wine is "ordinary in diplomatic practice," the Solicitor General took pains to inform the lower
court that the packing of Dr. Verstuyft's baggages and personal effects was done "by a packing
company in Taipei ... (and) Dr. Verstuyft had no hand in the preparation of the packing list of his
personal effects which has been assailed by ASAC agents. Also implicit from the foregoing is
the fact that Dr. Verstuyft had no intention to violate Philippine laws by selling the 120 bottles of
foreign wine and 15 tins of PX goods in the Philippines. Otherwise, he need not have stored the
same at the Eternit Corporation where they may be subject to the probing eyes of government
agents."
6
The Solicitor General cites that the Convention on the Privileges and Immunities of the
Specialized Agencies of the U.N. adopted on Nov. 21, 1947, and made applicable by ratification
to the WHO contains Article VII on abuse of privilege, calling for consultations between the Host
State and the U.S. agency concerned and in case no satisfactory result is reached for submittal
to the International Court of Justice for determination whether "such an abuse has occurred,"
and providing for the customary procedure of requiring the offending official's departure in
certain instances.
248
1. The executive branch of the Philippine Government has expressly recognized that petitioner
Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement.
The Department of Foreign Affairs formally advised respondent judge of the Philippine
Government's official position that accordingly "Dr. Verstuyft cannot be the subject of a
Philippine court summons without violating an obligation in international law of the Philippine
Government" and asked for the quashal of the search warrant, since his personal effects and
baggages after having been allowed free entry from all customs duties and taxes, may not be
baselessly claimed to have been "unlawfully imported" in violation of the tariff and customs code
as claimed by respondents COSAC officers. The Solicitor-General, as principal law officer of the
Government,7 likewise expressly affirmed said petitioner's right to diplomatic immunity and
asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should refuse to
look beyond a determination by the executive branch of the government, 8 and where the plea of
diplomatic immunity is recognized and affirmed by the executive branch of the government as in
the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General in this case, or
other officer acting under his direction.9 Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign relations, it is accepted doctrine that "in
such cases the judicial department of (this) govern-
_______________
7
Section 1661, Rev. Administrative Code.
8
See Trost vs. Tompkins, 44A. 2b 226.
9
See Ins. Co., 24 N.E. 2d 81, 281 N.Y. 362, reversing 5 N.Y.S. 2d 295, 254 App. Div. 511,
reargument denied 26 N.E. 2d 808, 282: N.Y. 676, motion denied 29 N.E. 2d 939 284 N.Y 633
(27-5th D-1127).
249
ment follows the action of the political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."10
2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents
COSAC officers "that the other remaining crates unopened contain contraband items"11 rather
than on the categorical assurance of the Solicitor-General that petitioner Verstuyft did not abuse
his diplomatic immunity,12which was based in turn on the official positions taken by the highest
executive officials with competence and authority to act on the matter, namely, the Secretaries
of Foreign Affairs and of Finance, could not justify respondent judge's denial of the quashal of
the search warrant.
As already stated above, and brought to respondent court's attention,13 the Philipine
Government is bound by the procedure laid down in Article VII of the Convention on the
Privileges and Immunities of the Specialized Agencies of the United Nations1 14 f or
consultations between the Host State and the United Nations agency concerned to determine,
in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no
repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by
the Philippine Government and as such, has the force and effect of law.
_______________
10
See, United States v. Lee, 106 U.S. 196, 209, 1 S. Ct. 240, 27 L. Ed. 171; Ex parte
Republic of Peru, 318 U.S. 578, 63 S. CT. 793, 87 L. Ed. 1014; Republic of Mexico v. Hoffman,
324, U.S. 30, 35, 65 S. Ct. 530, 89 L, Ed. 729; Welleman vs. Chase Manhattan Bank 192 N.Y.S.
2d 469.
11
Supra, fn. 4.
12
Supra, fn. 5.
13
Supra, fn. 6.
14
This Convention was adopted by the U.N. General Assembly on Nov. 21, 1947; it was
concurred in by the Philippine Senate under Sen. Resolution No. 21, May 17, 1949; and the
Philippine Instrument of Ratification was signed by the President of the Republic on Feb. 21,
1959 applying the Convention to the WHO. See 45 O.G. 3187 (1949) and Vol. I, Phil. Treaty
Series, p. 621.
250
Hence, even assuming arguendo as against the categorical assurance of the executive branch
of government that respondent judge had some ground to prefer respondents COSAC officers'
suspicion that there had been an abuse of diplomatic immunity, the continuation of the search
warrant proceedings before him was not the proper remedy. He should, nevertheless, in
deference to the exclusive competence and jurisdiction of the executive branch of government
to act on the matter, have acceded to the quashal of the search warrant, and forwarded his
findings or grounds to believe that there had been such abuse of diplomatic immunity to the
Department of Foreign Affairs for it to deal with, in accordance with the aforementioned
Convention, if so warranted.
3. Finally, the Court has noted with concern the apparent lack of coordination between the
various departments involved in the subject-matter of the case at bar, which made it possible for
a small unit, the COSAC, to which respondents officers belong, seemingly to disregard and go
against the authoritative determination and pronouncements of both the Secretaries of Foreign
Affairs and of Finance that petitioner Verstuyft is entitled to diplomatic immunity, as confirmed
by the Solicitor-General as the principal law officer of the Government. Such executive
determination properly implemented should have normally constrained respondents officers
themselves to obtain the quashal of the search warrant secured by them rather than oppose
such quashal up to this Court, to the embarrassment of said department heads, if not of the
Philippine Government itself vis a vis the petitioners.15
____________
15
In their answer to petition, respondents COSAC officers insist on their "belief and
contention" that the 120 bottles of foreign wine found by them "are far in excess, considered by
any reasonable standard of taste and elegance in the diplomatic world of the official mission
and needs of a diplomat, much more of the status of (petitioner), hence, they should be taxed"
and on their "conviction that the articles and effects... are not in fact and in truth personal
effects... so as to be comprehended within the privileges and immunities accorded
representatives of (WHO)." Rollo. pp. 138-139.
251
The seriousness of the matter is underscored when the provisions of Republic Act 75 enacted
since October 21, 1946 to safeguard the jurisdictional immunity of diplomatic officials in the
Philippines are taken into account. Said Act declares as null and void writs or processes sued
out or prosecuted whereby interalia the person of an ambassador or public minister is arrested
or imprisoned or his goods or chattels are seized or attached and makes it a penal offense for
"every person by whom the same is obtained or prosecuted, whether as party or as attorney,
and every officer concerned in executing it" to obtain or enforce such writ or process. 16
The Court, therefore, holds that respondent judge acted without jurisdiction and with grave
abuse of discretion in not ordering the quashal of the search warrant issued by him in disregard
of the diplomatic immunity of petitioner Verstuyft.
ACCORDINGLY, the writs of certiorari and prohibition prayed for are hereby granted, and
the temporary restraining order heretofore issued against execution or enforcement of the
questioned search warrant, which is hereby declared null and void, is hereby made permanent.
The respondent court is hereby commanded to desist f rom f urther
252
proceedings in the matter. No costs, none having been prayed for.
The clerk of court is hereby directed to furnish a copy of this decision to the Secretary of
Justice for such action as he may find appropriate with regard to the matters mentioned in
paragraph 3 hereof. So ordered.
Concepcion,
C.J., Makalintal, Zaldivar, Fernando, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Castro, J., reserves his vote.
Writs granted.
Notes.—Construction and Effect of Treaties.—In construing a treaty done in counterparts,
one in the language of each contracting party, little use can be made of the local technical
definitions of words. '(Re Zalewski, 157 ALR 87, 292 NY 332, 55 NE 2d 184.)
A treaty is a part of the supreme law of the land, binding upon courts and available to
persons having rights secured or recognized thereby, and may be set up as a defense to a
criminal prosecution instituted in disregard thereof (Dominguez vs. State, 18 ALR 503, 90 Tex.
Crim. Rep. 92, 234 S.W. 79.)
LEGAL RESEARCH SERVICE
See SCRA Quick Index-Digest, volume 1, page 375 on Constitutional Law; and volume 2, page
1928 on Statutory Construction.
See also Velayo's Digest,volume 5, page 1 on Constitutional Law; volume 12, page 1 on
International Law; volume 21, page 191 on Statutes; and volume 22, page 682 on Treaty.
253
Fernando, The Bill of Rights,1972 edition.
Abad Santos, Cases and Other Materials on International Law, 1971 edition.
Cruz, Public International Law, 1971 edition,
Salonga-Yap, Public International Law, 1966 edition,
See annotation on "Diplomatic Privileges and Immunities of International Officials? on the
next page.
_____________

________________

16
The pertinent section of Rep. Act 75, entitled "An act to penalize acts which would impair
the proper observance by the Republic and inhabitants of the Philippines of the immunities,
rights and privileges of duly accredited foreign diplomatic and consular agents in the
Philippines," reads: "Any writ or process sued out or prosecuted by any person in any court of
the Republic of the Philippines, or by any judge or
justice, whereby theperson of any ambassador or public minister of any foreign State,authorized
and received as such by the President, or any domestic or domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained,
seized, or attached, shall be deemed void, and every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall
upon conviction, be punished by imprisonment for not more than three years and a fine of not
exceeding two hundred pesos in the discretion of the court" (Section 4, italics supplied) As to
whether this Act may be invoked on behalf of petitioner (who does not pertain to the foreign
diplomatic corps), quaere.

G.R. No. 89651. November 10, 1989.*
DATU FIRDAUSI I.Y. ABBAS, DATU BLO UMPAR ADIONG, DATU MACALIMPOWAC
DELANGALEN, CELSO PALMA, ALI MONTAHA BABAO, JULMUNIR JANNARAL, RASHID
SABER, and DATU JAMAL ASHLEY ABBAS, representing the other taxpayers of Mindanao,
petitioners, vs.COMMISSION ON ELECTIONS, and HONORABLE GUILLERMO C. CARAGUE,
DEPARTMENT SECRETARY OF BUDGET AND MANAGEMENT, respondents.
G.R. No. 89965. November 10, 1989.*
ATTY. ABDULLAH D. MAMA-O, petitioner, vs.HON. GUILLERMO CARAGUE, in his capacity
as the Secretary of the Budget, and the COMMISSION ON ELECTIONS, respondents.
Constitutional Law; It is neither necessary nor determinate to rule on the nature of the
Tripoli Agreement; Case at bar.—We find it neither necessary nor determinative of the case to
rule on the nature of the Tripoli Agreement and its binding effect on the Philippine Government
whether under public international or internal Philippine law. In the first place, it is now the
Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao.
The standard for any inquiry into the validity of R.A. No. 6734 would therefore be what is so
provided in the Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the
provisions of the Tripoli Agreement will not have the effect of enjoining the implementation of the
Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or
international agreement, it would then constitute part of the law of the land. But as internal law it
would not be superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather
it would be in the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th
ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253
(1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a
subsequent law. Only a determination by this Court that R.A. No. 6734 contravenes the
Constitution would result in the granting of the reliefs sought.
________________
*
EN BANC.
288
Same; Creation of autonomous region under the Constitution and R.A. 6734; How to take
effect; Single plebiscite contemplated, determinative of (1) whether there shall be an
autonomous region in Muslim Mindanao and (2) which provinces and cities, shall compromise
it.—Thus, under the Constitution and R.A. No. 6734, the creation of the autonomous region
shall take effect only when approved by a majority of the votes cast by the constituent units in a
plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act
shall be included in the autonomous region. The provinces and cities wherein such a majority is
not attained shall not be included in the autonomous region. It may be that even if an
autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned
in Article II, section 1(2) of R.A. No. 6734 shall be included therein. The single plebiscite
contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1)
whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and
cities, among those enumerated in R.A. No. 6734, shall comprise it.
Same; The creation of the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in each of the constituent units;
Case at bar.—If the framers of the Constitution intended to require approval by a majority of all
the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it
is provided that “[t]his Constitution shall take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the purpose x x x.” Comparing this with the provision on
the creation of the autonomous region, which reads: The creation of the autonomous region
shall be effective when approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec. 18,
para. 2.] it will readily be seen that the creation of the autonomous region is made to depend,
not on the total majority vote in the plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. For if the intention of the framers of the
Constitution was to get the majority of the totality of the votes cast, they could have simply
adopted the same phraseology as that used for the ratification of the Constitution, i.e. “the
creation of the autonomous region shall be effective when approved by a majority of the votes
cast in a plebiscite called for the purpose.”
289
Same; What is required by the Constitution is a simple majority of votes approving the
organic act in individual constituent units.—It is thus clear that what is required by the
Constitution is a simple majority of votes approving the Organic Act in individual constituent
units and not a double majority of the votes in all constituent units put together, as well as in the
individual constituent units.
Same; Separation of powers; The ascertainment by Congress of the areas that share
common attributes is within the exclusive realm of legislature’s discretion.—Petitioner’s
argument is not tenable. The Constitution lays down the standards by which Congress shall
determine which areas should constitute the autonomous region. Guided by these constitutional
criteria, the ascertainment by Congress of the areas that share common attributes is within the
exclusive realm of the legislature’s discretion. Any review of this ascertainment would have to
go into the wisdom of the law. This the Court cannot do without doing violence to the separation
of governmental powers.
Same; Equal Protection; Permits of reasonable classification; The guarantee of equal
protection is not infringed in the case at bar; Reason.—Moreover, equal protection permits of
reasonable classification [People v. Vera, 65 Phil. 56 (1936); Laurel v. Misa, 76 Phil. 372 (1946);
J.M. Tuason and Co. v. Land Tenure Administration, G.R. No. L-21064, February 18, 1970, 31
SCRA 413]. In Dumlao v. Commission on Elections [G.R. No. 52245, January 22, 1980, 95
SCRA 392], the Court ruled that one class may be treated differently from another where the
groupings are based on reasonable and real distinctions. The guarantee of equal protection is
thus not infringed in this case, the classification having been made by Congress on the basis of
substantial distinctions as set forth by the Constitution itself.
Same; Courts; Judicial power, defined; Case at bar; No actual contoversy between real
litigants; No conflicting claims involving the application of national law resulting in an alleged
violation of religious freedom.—As enshrined in the Constitution, judicial power includes the duty
to settle actual controversies involving rights which are legally demandable and enforceable
[Art. VIII, Sec. 1]. As a condition precedent for the power to be exercised, an actual controversy
between litigants must first exist [Angara v. Electoral Commission, supra;Tan v. Macapagal,
G.R. No. L-34161, February 29, 1972, 43 SCRA 677]. In the present case, no actual
controversy between real litigants exists. There are no conflicting claims involving the
application of national law resulting in an alleged violation of religious freedom. This being so,
the Court in this case may not be called upon to resolve what is
290
merely a perceived potential conflict between the provisions of the Muslim Code and
national law.
Same; Local Governments; The power to merge administrative regions is a power which
has traditionally been lodged with the President to facilitate the exercise of the power of general
supervision over local governments; No conflict between the power of the President to merge
administrative regions with the Constitutional provision requiring plebiscite in the merger of local
government units; Reason.—It must be pointed out that what is referred to in R.A. No. 6734 is
the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which
are mere groupings of contiguous provinces for administrative purposes [Integrated
Reorganization Plan (1972), which was made as part of the law of the land by Pres. Dec. No. 1;
Presidential Decree No. 742]. Administrative regions are not territorial and political subdivisions
like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While
the power to merge administrative regions is not expressly provided for in the Constitution, it is a
power which has traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X, sec. 4 of the Constitution].
There is no conflict between the power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local government units because
the requirement of a plebiscite in a merger expressly applies only to provinces, cities,
municipalities or barangays, not to administrative regions.
 Same; The creation of the autonomous region when to take effect; The provisions in R.A. 1. (a)that R.A. 6734, or parts thereof, violates the Constitution, and
No. 6734 requiring an oversight committee do not provide for a different date of effectivitiy; 2. (b)that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
Reason; Case at bar.—Under the Constitution, the creation of the autonomous region hinges
only on the result of the plebiscite. If the Organic Act is approved by majority of the votes cast
The Tripoli Agreement, more specifically, the Agreement Between the Government of the
by constituent units in the scheduled plebiscite, the creation of the autonomous region
Republic of the Philippines and Moro National Liberation Front with the Participation of the
immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an Oversight
Quadripartite Ministerial Commission Members of the Islamic Conference and the Secretary
Committee to supervise the transfer do not provide for a different date of effectivity. Much less
General of the Organization of Islamic Conference” took effect on December 23, 1976. It
would the organization of the Oversight Committee cause an impediment to the operation of the
provided for “[t]he establishment of Autonomy in the Southern Philippines within the realm of the
Organic Act, for such is evidently aimed at effecting a smooth transition period for the regional
sovereignty and territorial integrity of the Republic of the Philippines” and enumerated the
government. The constitutional objection on this point thus cannot be sustained as there is no
thirteen (13) provinces comprising the “areas of autonomy.”2
basis therefor.
In 1987, a new Constitution was ratified, which for the first time provided for regional
Same; Statutes; Presumption of constitutionality; Court finds that petitioners have failed
autonomy. Article X, section 15 of the charter provides that “[t]here shall be created autonomous
to overcome the presumption.—Every law has in
regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities,
291
and geographical areas sharing common and distinctive historical and cultural heritage,
its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387
economic and social structures, and other relevant characteristics within the framework of this
(1925); Salas v. Jarencio, G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v.
Constitution and the national sovereignty as well as territorial integrity of the Republic of the
Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11, 1978, 82 SCRA 30]. Those
Philippines.”
who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish
To effectuate this mandate, the Constitution further provides:
the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised
Sec. 16. The President shall exercise general supervision over autonomous regions to ensure
by petitioners to challenge the constitutionality of R.A. No. 6734, the Court finds that petitioners
that the laws are faithfully executed.
have failed to overcome the presumption. The dismissal of these two petitions is, therefore,
Sec. 17. All powers, functions, and responsibilities not granted
inevitable.

________________
PETITIONS to review the decision of the Commission on Elections.
2
The provinces enumerated in the Tripoli Agreement are the same ones mentioned in R.A.
The facts are stated in the opinion of the Court.
No. 6734.
Abbas, Abbas, Amora, Alejandro-Abbas & Associates for petitioners in G.R. Nos. 89651
293
and 89965.
by this Constitution or by law to the autonomous regions shall be vested in the National
Abdullah D. Mama-ofor and in his own behalf in 89965.
Government.
Sec. 18. The Congress shall enact an organic act for each autonomous region with the
CORTÉS, J.: assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multisectoral bodies.
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in The organic act shall define the basic structure of government for the region consisting of the
Mindanao and Palawan,1 scheduled for November 19, 1989, in implementation of Republic Act executive department and legislative assembly, both of which shall be elective and
No. 6734, entitled “An Act Providing for an Organic Act for the Autonomous Region in Muslim representative of the constituent political units. The organic acts shall likewise provide for
Mindanao.” special courts with personal, family, and property law jurisdiction consistent with the provisions
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections of this Constitution and national laws.
(COMELEC) from conducting the plebiscite and the Secretary of Budget and Management from The creation of the autonomous region shall be effective when approved by majority of the
releasing funds to the COMELEC for that purpose; and (2) declare R.A. No. 6734, or parts votes cast by the constituent units in a plebiscite called for the purpose, provided that only the
thereof, unconstitutional. provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in
After a consolidated comment was filed by the Solicitor General for the respondents, which the autonomous region.
the Court considered as the answer, the case was deemed submitted for decision, the issues Sec. 19. The first Congress elected under this Constitution shall, within eighteen months
from the time of organization of both Houses, pass the organic acts for the autonomous regions
________________ in Muslim Mindanao and the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative powers
1
Art. II, Sec 1(2) of R.A. No. 6734 provides that “[t]he plebiscite shall be conducted in the over:
provinces of Basilan, Cotabato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao,
Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and
Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, 1. (1)Administrative organization;
Marawi, Pagadian, Puerto Princesa, and Zamboanga.” 2. (2)Creation of sources of revenues;
292 3. (3)Ancestral domain and natural resources;
having been joined. Subsequently, petitioner Mama-o filed a “Manifestation with Motion for 4. (4)Personal, family, and property relations;
Leave to File Reply on Respondents’ Comment and to Open Oral Arguments,” which the Court 5. (5)Regional urban and rural planning development;
noted. 6. (6)Economic, social and tourism development;
The arguments against R.A. No. 6734 raised by petitioners may generally be categorized 7. (7)Educational policies;
into either of the following: 8. (8)Preservation and development of the cultural heritage; and
 9. (9)Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Sec. 21. The preservation of peace and order within the regions shall be the responsibility
of the local police agencies which shall be organized, maintained, supervised, and utilized in
accordance with applicable laws. The defense and security of the region shall be the
responsibility of the National Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on
August 1, 1989.
294
1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e.
that certain provisions of R.A. No. 6734 conflict with the provisions of the Tripoli Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of
the law of the land, being a binding international agreement. The Solicitor General asserts that
the Tripoli Agreement is neither a binding treaty, not having been entered into by the Republic
of the Philippines with a sovereign state and ratified according to the provisions of the 1973 or
1987 Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli
Agreement and its binding effect on the Philippine Government whether under public
international or internal Philippine law. In the first place, it is now the Constitution itself that
provides for the creation of an autonomous region in Muslim Mindanao. The standard for any
inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the
Constitution. Thus, any conflict between the provisions of R.A. No. 6734 and the provisions of
the Tripoli Agreement will not have the effect of enjoining the implementation of the Organic Act.
Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or international
agreement, it would then constitute part of the law of the land. But as internal law it would not be
superior to R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in
the same class as the latter [SALONGA, PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974),
citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet. 253 (1829)]. Thus,
if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law.
Only a determination by this Court that R.A. No. 6734 contravenes the Constitution would result
in the granting of the reliefs sought.3
________________
3
With regard to the controversy regarding the alleged inconsistencies between R.A. No.
6734 and the Tripoli Agreement, it may be enlightening to quote from the statement of Senator
Aquilino Pimentel, Jr., the principal sponsor of R.A. No. 6734:
xxx
295
2. The Court shall therefore only pass upon the constitutional questions which have been raised
by petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region
in Mindanao, contrary to the aforequoted provisions of the Constitution on the autonomous
region which make the creation of such region dependent upon the outcome of the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which
declares that “[t]here is hereby created the Autonomous Region in Muslim Mindanao, to be
composed of provinces and cities voting favorably in the plebiscite called for the purpose, in
accordance with Section 18, Article X of the Constitution.” Petitioner contends that the tenor of
the above provision makes the creation of an autonomous region absolute, such that even if
only two provinces vote in favor of autonomy, an autonomous region would still be created
composed of the two provinces where the favorable votes were obtained.
The matter of the creation of the autonomous region and its composition needs to be
clarified.
First, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the
Constitution which sets forth the conditions necessary for the creation of the autonomous
region.
________________
The assertion that the Organic Act is a “betrayal” of the Tripoli Agreement is actually misplaced,
to say the least. Misplaced because it overlooks the fact that the Organic Act incorporates, at
least, 99 percent of the provisions of the Tripoli Agreement. Misplaced, again, because it
gratuitously assumes that the Tripoli Agreement can bring more benefits to the people of Muslim
Mindanao than the Organic Act.
The truth of the matter is that the Organic Act addresses the basic demands of the Muslim,
tribal and Christian populations of the proposed area of autonomy in a far more reasonable,
realistic and immediate manner than the Tripoli Agreement ever sought to do.
The Organic Act is, therefore, a boon to, not a betrayal, of the interests of the people of
Muslim Mindanao.
xxx
[Consolidated Comment, p. 26].
296
The reference to the constitutional provision cannot be glossed over for it clearly indicates that
the creation of the autonomous region shall take place only in accord with the constitutional
requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of
the Organic Act, which incorporates substantially the same requirements embodied in the
Constitution and fills in the details, thus:
SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when
approved by a majority of the votes cast by the constituent units provided in paragraph (2) of
Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days
or later than one hundred twenty (120) days after the approval of this Act: Provided,That only
the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous
Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for
inclusion in the Autonomous Region shall remain in the existing administrative
regions: Provided, however, That the President may, by administrative determination, merge the
existing regions.
Thus, under the Constitution and R.A. No. 6734, the creation of the autonomous region shall
take effect only when approved by a majority of the votes cast by the constituent units in a
plebiscite, and only those provinces and cities where a majority vote in favor of the Organic Act
shall be included in the autonomous region. The provinces and cities wherein such a majority is
not attained shall not be included in the autonomous region. It may be that even if an
autonomous region is created, not all of the thirteen (13) provinces and nine (9) cities mentioned
in Article II, section 1(2) of R.A. No. 6734 shall be included therein. The single plebiscite
contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1)
whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and
cities, among those enumerated in R.A. No. 6734, shall comprise it. [See III RECORD OF THE
CONSTITUTIONAL COMMISSION 487-492 (1986)].
As provided in the Constitution, the creation of the autonomous region in Muslim Mindanao
is made effective upon the approval “by majority of the votes cast by the constituent units in a
plebiscite called for the purpose” [Art. X, sec. 18]. The
297
question has been raised as to what this majority means. Does it refer to a majority of the total
votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent
units, or both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a majority of all the votes
cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is
provided that “[t]his Constitution shall take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the purpose x x x.” Comparing this with the provision on
the creation of the autonomous region, which reads:
The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities and geographic areas voting favorably in such plebiscite shall be included in
the autonomous region. [Art. X, sec. 18, para. 2].
it will readily be seen that the creation of the autonomous region is made to depend, not on the
total majority vote in the plebiscite, but on the will of the majority in each of the constituent units
and the proviso underscores this. For if the intention of the framers of the Constitution was to
get the majority of the totality of the votes cast, they could have simply adopted the same
phraseology as that used for the ratification of the Constitution, i.e. “the creation of the
autonomous region shall be effective when approved by a majority of the votes cast in a
plebiscite called for the purpose.”
It is thus clear that what is required by the Constitution is a simple majority of votes
approving the Organic Act in individual constituent units and not a double majority of the votes
in all constituent units put together, as well as in the individual constituent units.
More importantly, because of its categorical language, this is also the sense in which the
vote requirement in the plebiscite provided under Article X, section 18 must have been
understood by the people when they ratified the Constitution.
298
Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand,
maintains that only those areas which, to his view, share common and distinctive historical and
cultural heritage, economic and social structures, and other relevant characteristics should be
properly included within the coverage of the autonomous region. He insists that R.A. No. 6734 is
unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao
del Norte and Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen
(13) provinces and nine (9) cities included in the Organic Act, possess such concurrence in
historical and cultural heritage and other relevant characteristics. By including areas which do
not strictly share the same characteristics as the others, petitioner claims that Congress has
expanded the scope of the autonomous region which the Constitution itself has prescribed to be
limited.
Petitioner’s argument is not tenable. The Constitution lays down the standards by which
Congress shall determine which areas should constitute the autonomous region. Guided by
these constitutional criteria, the ascertainment by Congress of the areas that share common
attributes is within the exclusive realm of the legislature’s discretion. Any review of this
ascertainment would have to go into the wisdom of the law. This the Court cannot do without
doing violence to the separation of governmental powers. [Angara v. Electoral Commission, 63
Phil. 139(1936); Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 424].
After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis,
petitioner Mama-o would then adopt the extreme view that other non-Muslim areas in Mindanao
should likewise be covered. He argues that since the Organic Act covers several non-Muslim
areas, its scope should be further broadened to include the rest of the non-Muslim areas in
Mindanao in order for the others to similarly enjoy the benefits of autonomy. Petitioner maintains
that the failure of R.A. No. 6734 to include the other non-Muslim areas denies said areas equal
protection of the law, and therefore is violative of the Constitution.
Petitioner’s contention runs counter to the very same constitutional provision he had earlier
invoked. Any determination
299
by Congress of what areas in Mindanao should comprise the autonomous region, taking into
account shared historical and cultural heritage, economic and social structures, and other
relevant characteristics, would necessarily carry with it the exclusion of other areas. As earlier
stated, such determination by Congress of which areas should be covered by the organic act for
the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not
be inquired into by this Court.
Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil.
56(1936); Laurel v. Misa, 76 Phil. 372 (1946); J.M. Tuason and Co. v. Land Tenure
Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v. Commission
on Elections [G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that one class
may be treated differently from another where the groupings are based on reasonable and real
distinctions. The guarantee of equal protection is thus not infringed in this case, the
classification having been made by Congress on the basis of substantial distinctions as set forth
by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the
constitutional guarantee on free exercise of religion [Art. III, sec. 5]. The objection centers on a
provision in the Organic Act which mandates that should there be any conflict between the
Muslim Code [P.D. No. 1083] and the Tribal Code (still to be enacted) on the one hand, and the
national law on the other hand, the Shari‘ah courts created under the same Act should apply
national law. Petitioners maintain that the Islamic Law (Shari‘ah) is derived from the Koran,
which makes it part of divine law. Thus it may not be subjected to any “man-made” national law.
Petitioner Abbas supports this objection by enumerating possible instances of conflict between
provisions of the Muslim Code and national law, wherein an application of national law might be
offensive to a Muslim’s religious convictions.
As enshrined in the Constitution, judicial power includes the duty to settle actual
controversies involving rights which are legally demandable and enforceable [Art. VIII, Sec. 1].
As a condition precedent for the power to be exercised, an actual controversy between litigants
must first exist [Angara v. Elec-
300
toral Commission, supra;Tan v. Macapagal, G.R. No. L-34161, February 29, 1972, 43 SCRA
677]. In the present case, no actual controversy between real litigants exists. There are no
conflicting claims involving the application of national law resulting in an alleged violation of
religious freedom. This being so, the Court in this case may not be called upon to resolve what
is merely a perceived potential conflict between the provisions of the Muslim Code and national
law.
Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734
which, among others, states:
... Provided, That only the provinces and cities voting favorably in such plebiscite shall be
included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the
plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing
administrative regions: Provided, however, that the President may, by administrative
determination, merge the existing regions.
According to petitioners, said provision grants the President the power to merge regions, a
power which is not conferred by the Constitution upon the President. That the President may
choose to merge existing regions pursuant to the Organic Act is challenged as being in conflict
with Article X, Section 10 of the Constitution which provides:
No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative
regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of
contiguous provinces for administrative purposes [Integrated Reorganization Plan (1972), which
was made as part of the law of the land by Pres. Dec. No. 1, Pres. Dec. No. 742]. Administrative
regions are not territorial and political subdivisions like provinces, cities, municipalities and
barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative
regions is not expressly provided for in the Constitution, it is a
301
power which has traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X, sec. 4 of the Constitution].
There is no conflict between the power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local government units because
the requirement of a plebiscite in a merger expressly applies only to provinces, cities,
municipalities or barangays, not to administrative regions.
Petitioners likewise question the validity of provisions in the Organic Act which create an
Oversight Committee to supervise the transfer to the autonomous region of the powers,
appropriations, and properties vested upon the regional government by the Organic Act [Art.
XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government
offices and their properties to the regional government shall be made pursuant to a schedule
prescribed by the Oversight Committee, and that such transfer should be accomplished within
six (6) years from the organization of the regional government.
It is asserted by petitioners that such provisions are unconstitutional because while the
Constitution states that the creation of the autonomous region shall take effect upon approval in
a plebiscite, the requirement of organizing an Oversight Committee tasked with supervising the
transfer of powers and properties to the regional government would in effect delay the creation
of the autonomous region.
Under the Constitution, the creation of the autonomous region hinges only on the result of
the plebiscite. If the Organic Act is approved by majority of the votes cast by constituent units in
the scheduled plebiscite, the creation of the autonomous region immediately takes effect. The
questioned provisions in R.A. No. 6734 requiring an Oversight Committee to supervise the
transfer do not provide for a different date of effectivity. Much less would the organization of the
Oversight Committee cause an impediment to the operation of the Organic Act, for such is
evidently aimed at effecting a smooth transition period for the regional government. The
constitutional objection on this point thus cannot be sustained as there is no basis therefor.
Every law has in its favor the presumption of constitutional-
302
ity [Yu Cong Eng v. Trinidad, 47 Phil. 387(1925); Salas v. Jarencio, G.R. No. L-29788, August
30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra;Peralta v. COMELEC, G.R. No. L-47771, March
11, 1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition
must fail. Based on the grounds raised by petitioners to challenge the constitutionality of R.A.
No. 6734, the Court finds that petitioners have failed to overcome the presumption. The
dismissal of these two petitions is, therefore, inevitable.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.
Fernan (C.J.), Narvasa, Gutierrez,
Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-
Aquino,Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J.,on leave.
Petitions dismissed.
Note.—View that the Constitution does not require prior publication for laws to be effective
and while due process requires notice, such notice is not necessarily publication in the Official
Gazette. (Tañada vs. Tuvera, 136 SCRA 27).

——o0o——

[No. L-7995. May 31, 1957]
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ,
Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents.
1156
1. 1.CONSTITUTIONAL LAW; POLICE POWER; NATURE AND SCOPE.—Police
power is far-reaching in scope, and it is almost impossible to limit its sweep. It
derives its existence from the very existence of the State itself, and does not need
to be expressed or defined in its scope. It is said to be co-extensive with self-
protection and survival, and as such it is the most positive and active of all
governmental processes, the most essential, insistent and illimitable. Especially is it
so under a modern democratic framework where the demands of society and of
nations have multiplied to almost unimaginable proportions; the field and scope of
police power has become almost boundless, just as the fields of public interest and
public welfare have become almost all-embracing and have transcended human
foresight.
1. 2.ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE
CONSTITUTION; UNIVERSALITY OF APPLICATION.—The constitutional
guarantees in Section I, Article III, of the Constitution, which embody the essence of
individual liberty and freedom in democracies, are not limited to citizens alone but
are admittedly universal in their application, without regard to any differences of
race, of color, or of nationality (Yiek Wo vs. Hopkins, 30 L. ed., 220, 226).
1. 3.ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR PROPERTY; TEST OR
STANDARD.—The conflict between police power and the guarantees of due
process and equal protection of the laws is more apparent than real. Properly
related, the power and the guarantees are supposed to coexist. The balancing is the
essence, or the indispensable means for the" attainment of legitimate aspirations of
any democratic society. There can be no absolute power, whoever exercises it, for
that would be tyranny. Yet there can neither be absolute liberty, for that would mean
license and anarchy. So the State can deprive persons of life, liberty or property,
provided there is due process of law; and persons may be classified into classes
and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly
grounded on public interest and welfare, and a reasonable relation must exist
between purposes and means. And if disctinction or classification has been made,
there must be a reasonable basis for said distinction.
1. 4.ID.; EQUAL PROTECTION OF THE LAW CLAUSE; WHEN NOT DEEMED
INFRINGED BY LEGISLATION.—The equal protection of the law clause is against
undue favor and individual or class privilege, as well as hostile discrimination or the
oppression of inequality.
1157
1. It is not intended to prohibit legislation, which is limited either in the object to which it
is directed or by territory within which it is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exist for making a distinction
between those who fall within such class and those who do not (2 Cooley,
Constitutional Limitations, 824-825).
1. 5.ID. ; ID. ; LEGISLATIVE POWER TO MAKE DISTINCTION AND CLASSIFICATION
AMONG PERSONS; CITIZENSHIP AS GROUND FOR CLASSIFICATION.—The
power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classification is without reasonable basis.
Citizenship is a legal and valid ground for classification.
1. 6.ID.; ID.; NATIONALIZATION OF RETAIL TRADE; CLASSIFICATION IN REPUBLIC
ACT No. 1180 ACTUAL, REAL AND REASONABLE.—The classification in the law
of retail traders into nationals and aliens is actual, real and reasonable. All persons
of one class are treated alike, and it cannot be said that the classification is patently
unreasonable and unfounded. Hence, it is the duty of this Court to declare that the
legislature acted within its legitimate prerogative and it cannot declare that the act
transcends the limits of equal protection established by the Constitution.
1. 7.ID. ; ID. ; ID. ; ID. ; TEST OF REASONABLENESS.—The law in question is
deemed absolutely necessary to bring about the desired legislative objective, i.e., to
free the national economy from alien control and dominance. It is not necessarily
unreasonable because it affects private rights and privileges (II Am. Jur., pp. 1080-
1081). The test of reasonableness of a law is the appropriateness or adequacy
under all circumstances of the means adopted to carry out its purpose into effect.
Judged by this test, the disputed legislation, which is not merely reasonable but
actually necessary, must be considered not to have infringed the constitutional
limitation of reasonableness.
1. 8.ID.; ID.; ID.; ID.; ID.; REPUBLIC ACT No. 1180 TOLERANT AND REASONABLE.—
A cursory study of the provisions of the law
1158
1. immediately reveals how tolerant and reasonable the Legislature has been. The law is
made prospective and recognizes the right and privilege of those already engaged
in the occupation to continue therein during the rest of their lives; and similar
recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied only to persons upon conviction of certain offenses.
1. 9.ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE ASPIRATIONS OF A PEOPLE NOT
BEYOND THE LIMITS OF LEGISLATIVE AUTHORITY.—If political independence
is a legitimate aspiration of a people, then economic independence is none of less
legitimate. Freedom and liberty are not real and positive, if the people are subject to
the economic control and domination of others, especially if not of their own race or
country. The removal and eradication of the shackles of foreign economic control
and domination is one of the noblest motives that a national legislature may pursue.
It is impossible to conceive that legislation that seeks to bring it about can infringe
the constitutional limitation of due process. The attainment of a legitimate aspiration
of a people can never be beyond the limits of legislative authority.
1. 10.ID.; ID.; ID.; NATIONALISTIC TENDENCY MANIFESTED IN THE
CONSTITUTION.—Nationalistic tendency is manifested in various provisions of the
Constitution. The nationalization of the retail trade is only a continuance of the
 nationalistic protective policy laid down as a primary objective of the Constitution, It
cannot therefore be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid or
unconstitutional.
1. 11.ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF LEGISLATIVE DISCRETION
NOT SUBJECT TO JUDICIAL REVIEW.—The exercise of legislative discretion is
not subject to judicial review. The Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment. The Legislature
is primarily the judge of the necessity of an enactment or of any of its provisions,
and every presumption is in favor of its validity, and though the Court may hold
views inconsistent with the wisdom of the law, it may not annul the legislation if not
palpably in excess of the legislative power.
1. 12.ID.; TITLES OF BILLS; PROHIBITION AGAINST DUPLICITY; PRESENCE OF
DUPLICITY NOT SHOWN IN TlTLE OR PROVISIONS OF REPUBLIC ACT No.
1180.—What Section 21(1) of Article VI of the Constitution prohibits is duplicity, that
is, if its title completely fails to apprise the legislators or the public of the nature.
1159
1. scope and consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297). A cursory consideration of the title and the
provisions of the bill fails to show the presence of duplicity. It is true that the term
"regulate" does not and may not readily and at first glance convey the idea of
"nationalization" and "prohibition", which terms express the two main purposes and
objectives of the law. But "regulate" is a broader term than either prohibition or
nationalization. Both of these have always been included within the term
"regulation".
1. 13.ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE OF BILL.—The general
rule is for the use of general terms in the title of a bill; the title need not be an index
to the entire contents of the law (I Sutherland, Statutory Construction, Sec. 4803, p.
345). The above rule was followed when the title of the Act in question adopted the
more general term "regulate" instead of "nationalize" or "prohibit".
1. 14.ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL DIRECTIVE REGARDING
SUBJECT OF A BILL.—One purpose of the constitutional directive that the subject
of a bill should be embraced in its title is to apprise the legislators of the purposes,
the nature and scope of its provisions, and prevent the enactment into law of
matters which have not received the notice, action and study of the legislators or of
the public. In case at bar it cannot be claimed that the legislators have not been
apprised of the nature of the law, especially the nationalization and prohibition
provisions. The legislators took active interest in the discussion of the law, and a
great many of the persons affected by the prohibition in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed.
1. 15.ID.; INTERNATIONAL TREATIES AND OBLIGATIONS NOT VIOLATED BY
REPUBLIC ACT No. 1180; TREATIES SUBJECT TO QUALIFICATION OR
AMENDMENT BY SUBSEQUENT LAW.—The law does not violate international
treaties and obligations. The United Nations Charter imposes no strict or legal
obligations regarding the rights and freedom of their subjects (Jans Kelsen, The
Law of the United Nations, 1951 ed., pp. 29-32), and the Declaration of Human
Rights contains nothing more than a mere recommendation, or a common standard
of achievement for all peoples and all nations. The Treaty of Amity between the
Republic of the Philippines and the Republic of China of April 18, 1947 guarantees
equality of treatment to the Chinese nationals "upon the same terms as the
nationals of any other
1160
1. country". But the nationals of China are not discriminated against because nationals
of all other countries, except those of the United States, who are granted special
rights by the Constitution, are all prohibited from engaging in the retail trade. But
even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U.S. vs.Thompson,
258, Fed. 257, 260), and the same may never curtail or restrict the scope of the
police power of the State (Palston vs.Pennsylvania 58 L. ed., 539).
ORIGINAL ACTION in the Supreme Court. Injunction and Mandamus.
The facts are stated in the opinion of the Court.
Ozaeta, Lichauco & Picazo and Sycip, Quisumbing, Salazar & Associates for petitioner.
Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent
City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and the 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
1161
to translate national aspirations for economic independence and national security, rooted in the
drive and urge for national survival and welfare, into a concrete and tangible measures
designed to free the national retailer from the competing dominance of the alien, so that the
country and the nation may be free from a supposed economic dependence and bondage. Do
the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition
against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from
engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in
favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue
to engage therein, unless their licenses are forfeited in accordance with the law, until their death
or voluntary retirement in case of natural persons, and for ten years after the approval of the Act
or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of
citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to
engage in the retail business) for violation of the laws on nationalization, economic control
weights and measures and labor and other laws relating to trade, commerce and industry; (5) a
prohibition against the establishment or opening by aliens actually engaged in the retail
business of additional stores or branches of retail business, (6) a provision requiring aliens
actually engaged in the retail business to present for registration with the proper authorities a
verified statement concerning their businesses, giving, among other matters, the nature of the
business, their assets
1162
and liabilities and their offices and principal offices of juridical entities; and (7) a provision
allowing the heirs of aliens now engaged in the retail business who die, to continue such
business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based—Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and
partnerships adversely affected by the provisions of Republic Act No. 1180, brought this action
to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the laws and deprives them of their liberty and
property without due process of law; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international and treaty obligations of the
Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of
their retail business thru hereditary succession, and those requiring 100% Filipino capitalization
for a corporation or entity to entitle it to engage in the retail business, violate the spirit of
Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the
Act was passed in the valid exercise of the police power of the State, which exercise is
authorized in the Constitution in the interest of national economic survival; (2) the Act has only
one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as
regards hereditary succession, only the form is affected but the value of the property is not
impaired, and the institution of inheritance is only of statutory origin.
1163
IV. Preliminary consideration of legal principles involved
a. The police power.—
There is no question that the Act was approved in the exercise of the police power, but
petitioner claims that its exercise in this instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But before proceeding to the
consideration and resolution of the ultimate issue involved, it would be well to bear in mind
certain basic and f undamental, albeit preliminary, considerations in the determination of the
ever recurrent conflict between police power and the guarantees of due process and equal
protection of the laws. What is the .scope of police power, and how are the due process and
equal protection clauses related to it? What is the province and power of the legislature, and
what is the function and duty of the courts? These consideration must be clearly and correctly
understood that their application to the f acts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said that police power is so far-reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the State
itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with
selfprotection and survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. Especially is it sounder a modern
democratic framework where the demands of society and of nations have multiplied to almost
unimaginable proportions; the field and scope of police power has become almost boundless,
just as the fields of public interest and public welfare have become almost all-embracing and
have transcended human foresight. Otherwise stated, as we cannot foresee the needs and
demands of public interest and welfare in this constantly changing and progressive world, so we
cannot delimit beforehand the extent or scope
1164
of police power by which and through which the State seeks to attain or achieve public interest
or welfare. So it is that Constitutions do not define the scope or extent of the police power of the
State; what they do is to set f orth the limitations thereof. The most important of these are the
due process clause and the equal protection clause.
b. Limitations on police power.—
The basic limitations of due process and equal protection are found in the following provisions of
our Constitution:
"SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of
law, nor shall any person be denied the equal protection of the laws." (Article III, Phil.
Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
ed. 220, 226.)
c. The equal protection clause.—
The equal protection of the law clause is against undue favor and individual or class privilege,
as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation, which is limited either in the object to which it is directed or by territory within which it
is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation
which applies only to those persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for making a distinction between
those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations,
824-825.)
1165
d. The due process clause.—
The due process clause has to do with the reasonableness of legislation enacted in pursuance
of the police power. Is there public interest, a public purpose; is public welf are involved? Is the
Act reasonably necessary for the accomplishment of the legislature's purpose; is it not
unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection
with the matter involved; or has there not been a capricious use of the legislative power? Can
the aims conceived be achieved by the means used, or is it not merely an unjustified
interference with private interest? These are the questions that we ask when the due process
test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related; the power and the
guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of any democratic society.
There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can
neither be absolute liberty, for that would mean license and anarchy. So the State can deprive
persons of life, liberty and property, provided there is due process of law; and persons may be
classified into classes and groups, provided everyone is given the equal protection of the law.
The test or standard, as always, is reason, The police power legislation must be firmly grounded
on public interest and welfare, and a reasonable relation must exist between purposes and
means. And if distinction and classification has been made, there must be a reasonable basis
for said distinction.
e. Legislative discretion not subject to judicial review.—
Now, in this matter of equitable balancing, what is the proper place and role of the courts ? It
must not be overlooked, in the first place, that the legislature, which is the
1166
constitutional repository of police power and exercises the prerogative of determining the policy
of the State, is by force of circumstances primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of
the measures adopted to implement the public policy or to achieve public interest. On the other
hand, courts, although zealous guardians of individual liberty and right, have nevertheless
evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done
so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of
the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and
courts never inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
no question that it falls within the legitimate scope of legislative power.. But it goes further and
prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which
from time immemorial has always been open to residents, irrespective of race, color or
citizenship.
a. Importance of retail trade in the economy of the nation.—
In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live
in communities producing more than what they consume and needing an infinite number of
things they do not produce, the dealer comes into existence.
1167
As villages develop into big communities and specialization in production begins, the dealer's
importance is enhanced. Under modern conditions and standards of living, in which man's
needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods and
commodities needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the
community. He ministers to the resident's daily needs, food in all its increasing forms, and the
various little gadgets and things needed for home and daily life. He provides his customers
around his store with the rice or corn, the fish, the salt, the vinegar, the ,spices needed for the
daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the
clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-
saristore, to the operator of a department store or a supermarket is so much a part of day-to-day
existence.
b. The alien retailer's traits.—
The alien retailer must have started plying his trade in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually he invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale
in the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.
1168
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred
and insolent neighbors and customers are made in his face, but he heeds them not, and he
forgets and forgives. The community takes no note of him, as he appears to be harmless and
extremely useful.
c. Alleged alien control and dominance.—
There is a general f eeling on the part of the public, which appears to be true to f act, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him.
In big cities and centers of population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Accfa, his control
over principal foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one
breath it is said that the fear is unfounded and the threat is imagined; in another, it is charged
that the law is merely the result of racialism and pure and unabashed nationalism. Alienage, it is
said, is not an element of control; also so many unmanageable factors in the retail business
make control virtually impossible. The first argument which brings up an issue of fact merits
serious consideration. The others are matters of opinion within the exclusive competence of the
legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black
and white. Between the constitutional convention year (1935), when the fear of alien domination
and control of the retail trade already
1169
filled the minds of our leaders with fears and misgivings, and the year of the enactment of the
nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-
increasing dominance and control by the alien of the retail trade, as witness the following tables;
1170
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department
of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small.
The above figures reveal that in percentage distribution of assets and of gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through
their assets and gross sales which average between six and seven times those of the very
many Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests
more capital, buys and sells six to seven times more, and gains much more. The same official
report, pointing out to the known predominance of foreign elements in the retail trade, remarks
that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by
respondents, the native investment is
1171
thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price
and supply,
d. Alien control and threat, subject of apprehension in Constitutional Convention.—
It is this domination and control, which we believe has been sufficiently shown to exist, that is
the legislature's target in the enactment of the disputed nationalization law. If they did not exist
as a fact the sweeping remedy of nationalization would never have been adopted. The framers
of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the
Convention that the public interest requires the nationalization of the retail trade; * * *." (II
Aruego, The Framing of the Philippine Constitution, 662663, quoted on page 67 of Petitioner.)
That was twentytwo years ago; and the events since then have not been either pleasant or
comforting. Dean Sinco of the University of the Philippines College of Law, commenting on the
patrimony clause of the Preamble opines that the fathers of our Constitution were merely
translating the general preoccupation of Filipinos "of the dangers from alien interests that had
already brought under their control the commercial and other economic activities of the country"
(Sinco, Phil. Political Law, 10th ed., p, 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic
provisions of the Constitution, he says:
"But there has been a general feeling that alien dominance over the economic life of the country
is not desirable and that if such a situation should remain, political independence alone is no
guarantee to national stability and strength. Filipino private capital is not big enough to wrest
from alien hands the control of the national economy. Moreover, it is but of recent formation and
hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the
instrumentality of the national will, has to step in and assume the initiative, if not the leadership,
in the struggle for the
1172
economic freedom of the nation in somewhat the same way that it did in the crusade for political
freedom. Thus * * * it (the Constitution) envisages an organized movement for the protection of
the nation not only against the possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field." (Phil. Political Law by Sinco, 10th ed., p.
476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution
No. 1, approved on July 18, 1953, of the Fifth National Convention of Filipino Businessmen, and
a similar resolution, approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes, and fears, alien
predominance and control; so our newspapers, which have editorially pointed out not only to
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a
reality proved by official statistics, and felt by all the sections and groups that compose the
Filipino community.
e. Dangers of alien control and dominance in retail.
But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger
the national interest. With ample capital, unity of purpose and action and thorough organization,
alien retailers and merchants can act in such complete unison and concert on such vital matters
as the fixing of prices, the determination of the amount of goods or articles to be made available
in the market, and even the choice of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of the complete subservience of
national retailers and of the consuming public are not entirely unfounded. Nationals, producers
1173
and consumers alike, can be placed completely at their mercy. This is easily illustrated.
Suppose an article of daily use is desired to be prescribed by the aliens, because the producer
or importer does not offer them sufficient profits, or because a new competing article offers
bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first
article, eliminating it from their stocks, offering the new one as a substitute. Hence, the
producers or importers of the prescribed article, or its consumers, find the article suddenly out of
circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of
alien domination. Grave abuses have characterized the exercise of the retail trade by aliens. It
is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the
interests of truth and justice, that there exists a general feeling on the part of the public that
alien participation in the retail trade has been attended by a pernicious and intolerable practices,
the mention of a few of which would suffice for our purposes; that at some time or other they
have cornered the market of essential commodities, like corn and rice, creating artificial
scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of the consuming public, so much so that the
Government has had to establish the National Rice and Corn Corporation to save the public
from their continuous hoarding practices and tendencies; that they have violated price control
laws, especially on foods and essential commodities, such that the legislature had to enact a
law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for
price control convictions; that they have secret combinations among themselves to control
prices, cheating the operation of the law of supply and demand;
1174
that they have connived to boycott honest merchants and traders who would not cater or yield to
their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the
public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful
authority. It is also believed that they have engaged in corrupting public officials with fabulous
bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter
of fact appeals to unscrupulous aliens have been made both by the Government and by their
own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about
the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in
the future. The present dominance of the alien retailer, especially in the big centers of
population, therefore, becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of harmless aliens retailing goods
among nationals; what we have are well organized and powerful groups that dominate the
distribution of goods and commodities in the communities and big centers of population. They
owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis
or emergency. While the national holds his life, his person and his property subject to the needs
of his country, the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security.—
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed
law is not the product of racial hostility, prejudice or discrimination, but the expression of the
legitimate desire and determina-
1175
tion of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The
law is clearly in the interest of the public, nay of the national security itself, and indisputably falls
within the scope of police power, thru which and by which the State insures its existence and
security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a.Objections to alien participation in retail trade.—
The next question that now poses solution is, Does the law deny the equal protection of the
laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction
between the alien and the national as a trader. The alien resident owes allegiance to the
country of his birth or his adopted country; his stay here is for personal convenience; he is
attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither
illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this
country where he temporarily stays and makes his living, or of that spirit of regard, sympathy
and consideration for his Filipino customers as would prevent him from taking advantage of their
weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to
his beloved country and his beloved kin and countrymen. The experience of the country is that
the alien retailer has shown such utter disregard for his customers and the people on whom he
makes his profit, that it has been found necessary to adopt the legislation, radical as it may
seem.
Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution,
but the gains and profits he makes are not invested in industries that would help the
1176
country's economy and increase national wealth. The alien's interest in this country being
merely transient and temporary, it would indeed be ill-advised to continue entrusting the very
important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out
above, their secret manipulations of stocks of commodities and prices, their utter disregard of
the welfare of their customers and of the ultimate happiness of the people of the nation of which
they are mere guests, which practices, manipulations and disregard do not attend the exercise
of the trade by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative classification
adopted in the retail trade measure. These differences are certainly a valid reason for the State
to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found
between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction.—
The above objectionable characteristics of the exercise of the retail trade by the aliens, which
are actual and real, furnish sufficient grounds for legislative classification of retail traders into
nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To
this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike,
and as it cannot be said that the classification is patently unreasonable and unfounded, it is in
duty bound to declare that the legislature acted within its legitimate prerogative and it cannot
declare that the act transcends the limit of equal protection established by the Constitution.
 1177
Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis. In addition to the authorities
we have earlier cited, we can also refer to the case of Lindsley vs. Natural Carbonic Gas
Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal
protection clause to a law sought to be voided as contrary thereto:
"* * *. 1. The equal protection clause of the Fourteenth Amendment does not take from the state
the power to classify in the adoption of police laws, but admits of the exercise of the wide scope
of discretion in that regard, and avoids what is done only when it is without any reasonable
basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does
not offend against that clause merely because it is not made with mathematical nicety, or
because in practice it results in some inequality. 3. When the classification in such a law is
called in question, if any state of facts reasonably can be conceived that would sustain it, the
existence of that state of facts at the time the law was enacted must be assumed. 4. One who
assails the classification in such a law must carry the burden of showing that it does not rest
upon any reasonable basis, but is essentially arbitrary.'"
c. Authorities recognizing citizenship as basis for classification.—
The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal pro-
1178
tection clause of the Philippine Bill of Rights. The Legislature in enacting the law had as ultimate
purpose the encouragement of Philippine shipbuilding and the safety for these Islands from
foreign interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. In substance, we held that the limitation of
domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does
not violate the equal protection of the law and due process of law clauses of the Philippine Bill
of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice
Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
" 'Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly
of that character, and forms part of an extensive system, the object of which is to encourage
American shipping, and place them on an equal footing with the shipping of other nations.
Almost every commercial nation reserves to its own subjects a monopoly of its coasting trade;
and a countervailing privilege in favor of American shipping is contemplated, in the whole
legislation of the United States on this subject. It is not to give the vessel an American
character, that the license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contradistinguished from foreign;
and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves
into the American commercial marine, as well as frauds upon the revenue in the trade
coastwise, that this whole system is projected.'"
The rule in general is as follows:
"Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That would
be requiring a higher degree of protection for aliens as a class than for similar classes of
American citizens. Broadly speaking, the difference in status between citizens and aliens
constitutes a basis for reasonable classification in the exercise of police power." (2 Am. Jur.
468-469.)
1179
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of
hawkers and peddlers, which provided that no one can obtain a license unless he is, or has
declared his intention, to become a citizen of the United States, was held valid, for the following
reason: It may seem wise to the legislature to limit the business of those who are supposed to
have regard for the welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs.State, 99 N.E. 309 (Ohio, 1912), a
statute which prevented certain persons, among them aliens, from engaging in the traffic of
liquors, was found not to be the result of race hatred, or inhospitality, or a deliberate purpose to
discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with
'our institutions and our life as to enable him to appreciate the relation of this particular business
to our entire social f abric", and was not, theref ore, invalid. In Ohio ex
rel. Clarke vs.Deckebach, 274 U.S. 392, 71 L. ed. 1115 (1926), the U. S. Supreme Court had
under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses
(pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is
prohibited, but it does not follow that alien race and allegiance may not bear in some instances
such a relation to a legitimate object of legislation as to be made the basis of permitted
classification, and that it could not state that the legislation is clearly wrong; and that latitude
must be allowed for the legislative appraisement of local conditions and for the legislative choice
of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129
(Ohio, 1919) is a parallel case to the one at bar. In Asakura, vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawnbroking was considered as having tendencies injuring
public interest, and limiting it to citizens is within the scope of police power. A similar statute
denying
1180
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L. R. A., 1915
P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the
court said that aliens are judicially known to have different interests, knowledge, attitude,
psychology and loyalty, hence the prohibition of issuance of licenses to them for the business of
pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights.
In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law
prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was
the court's finding that the exercise of the business by the aliens does not in any way affect the
morals, the health, or even the convenience of the community. In Takahashi vs.Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial
fishing licenses to persons ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward persons of
Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been
treated traditionally as natural resources. In Fraser vs.McConway & Tarley Co., 82 Fed. 257
(Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born
unnaturalized male persons over 21 years of age, was declared void because the court found
that there was no reason for the classification .and the tax was an arbitrary deduction from the
daily wage of an employee.
d. Authorities contra explained.—
It is true that some decisions of the Federal court and of the State courts in the United States
hold that the distinction between aliens and citizens is not a valid
1181
ground for classification. But in these decisions the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and
hostility, and there was no question of public interest involved or pursued. In Yu Cong
Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a
Philippine law making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if
Chinese were driven out of business there would be no other system of distribution, and (2) that
the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to
be advised of their business and to direct its conduct. The real reason for the decision,
therefore, is the court's belief that no public benefit would be derived from the operation of the
law and on the other hand it would deprive Chinese of something indispensable for carrying on
their business. In Yick Wo vs. Hopkins, 30 L. ed. 220 (1885) an ordinance conferring power on
officials to withhold consent in the operation of laundries both as to persons and place, was
declared invalid, but the court said that the power granted was arbitrary, that there was no
reason for the discrimination which attended the administration and implementation of the law,
and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void,
because the discrimination bore no reasonable and just relation to the act in respect to which
the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said,
aliens do not naturally possess the sympathetic consideration and regard for customers with
whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy,
except in so far as it enhances their profit,
1182
nor the loyalty and allegiance which the national owes to the land. These limitations on the
qualifications of aliens have been shown on many occasions and instances, especially in times
of crisis and emergency. We can do no better than borrow the language of Anton vs. Van
Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
"* * *. It may be judicially known, however, that aliens coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology from our fellow countrymen.
Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is
first to their own country, and whose ideals of governmental environment and control have been
engendered and formed under entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed toward the United States, as
those who by citizenship, are a part of the government itself. Further enlargement, is
unnecessary. I have said enough so that obviously it cannot be affirmed with absolute
confidence that the Legislature was without plausible reason for making the classification, and
therefore appropriate discrimination against aliens as it relates to the subject of legislation. * * *."
VII The Due Process of Law Limitation
a. Reasonability, the test of the limitation; determination by legislature decisive.—
We now come to due process as a limitation on the exercise of the police power. It has been
stated by the highest authority in the United States that:
"* * * And the guaranty of due process, as has often been held, demands only that the law shall
not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. * * *."
* * * * * * * not merely reasonable but actually necessary, must be considered not to have infringed the
"So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may reasonably be
deemed to promote public welfare, and to enforce that policy by legislation adapted
1183
to its purpose. The courts are without authority either to declare such policy, or, when it is
declared by the legislature, to override it. If the laws passed are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a
court functus officio. * * *." (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
"* * *. Too much significance cannot be given to the word 'reasonable' in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the restrictions it
imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether
it imposes any restrictions on such rights. * * *."
* * * * * * * If political independence is a legitimate aspiration of a people, then economic independence is
"* * *. A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must not be
unduly oppressive." (11 Am. Jur. Sec. 302, pp. 1074-1075.)
In the case of Lawton vs.Steele, 38 L. ed. 385, 388, it was also held:
"* * *. To justify the state in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular class,
require such interference; and second, that the means are reasonably necessary for the
accomplishment of the purpose, and -not unduly oppressive upon individuals. * * *."
Prata Undertaking Co. vs.State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
"In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and
capricious use of that power, without substantial relation to the health, safety, morals, comfort,
and general welfare of the public."
1184
b. Petitioner's argument considered.—
Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuit of happiness by free men; that
it is a gainful and honest occupation and therefore beyond the power of the legislature to
prohibit and penalize. This argument overlooks fact and reality and rests on an incorrect
assumption and premise, i.e., that in this country where the occupation is engaged in by
petitioner, it has been so engaged by him, by the alien, in an honest creditable and
unimpeachable manner, without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has found, as we have also
found and indicated, that the privilege has been so grossly abused by the alien, thru the
illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of
the occupation and threatens a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the
retail trade unreasonable, arbitrary and capricious, taking into account the illegitimate and
pernicious form and manner in which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed absolutely necessary to
bring about the desired legislative objective, i.e., to free national economy from alien control and
do minance. It is not necessarily unreasonable because it affects private rights and privileges
(11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or
adequacy under all circumstances of the means adopted to carry out its purpose into
effect (Id.)Judged by this test, disputed legislation, which is
1185
constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied
the bill, which later was enacted into law:
"This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not
citizens of the Philippines from having a strangle hold upon our economic life. If the persons
who control this vital artery of our economic life are the ones who owe no allegiance to this
Republic, who have no profound devotion to our free institutions, and who have no permanent
stake in our people's welfare, we are not really the masters of our own destiny. All aspects of
our life, even our national security, will be at the mercy of other people.
"In seeking to accomplish the foregoing purpose, we do not propose to deprive persons
who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take
away from the hands of persons who are not citizens of the Philippines a power that can be
wielded to paralyze all aspects of our national life and endanger our national security it respects
existing rights.
"The approval of this bill is 'necessary for our national survival."
none the less legitimate. Freedom and liberty are not real and positive if the people are subject
to the economic control and domination of others, especially if not of their own race or country.
The removal and eradication of the shackles of foreign economic control and domination, is one
of the noblest motives that a national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional limitation of due process.
The attainment of a legitimate aspiration of a people can never be beyond the limits of
legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative
action.—
The framers of the Constitution could not have intended to impose the constitutional restrictions
of due
1186
process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have
given to the legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue now before
us, they expressly made their voice clear; they adopted a resolution expressing their belief that
the legislation in question is within the scope of the legislative power. Thus they declared in their
Resolution:
" That it is the sense of the Convention that the public interest requires the nationalization of
retail trade; but it abstains from approving the amendment introduced by the Delegate for
Manila, Mr. Araneta, and others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino and American citizens the
privilege to engage in the retail trade.'" (II Aruego, The Framing of the Philippine Constitution,
662-663, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principal objective is the conservation of the patrimony of
the nation and as corollary thereto the provision limiting to citizens of the Philippines the
exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV,
it is provided that "no franchise, certificate, or any other form of authorization for the operation of
a public utility shall be granted except to citizens of the Philippines." The nationalization of the
retail trade is only a continuance of the nationalistic protective policy laid down as a primary
objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is unreasonable, invalid and
unconstitutional ?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in
the approval
1187
of the radical measure is, therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of the nationals with
complacency and refuse or neglect to adopt a remedy commensurate with the demands of
public interest and national survival. As the repository of the sovereign power of legislation, the
Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable.—
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable
the Legislature has been. The law is made prospective and recognizes the right and privilege of
those already engaged in the occupation to continue therein during the rest of their lives; and
similar recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied to those only upon conviction of certain offenses. In the deliberations of the
Court on this case, attention was called to the fact that the privilege should not have been
denied to children and heirs of aliens now engaged in the retail trade. Such provision would
defeat the law itself, its aims and purposes. Besides, the exercise of legislative discretion is not
subject to judicial review. It is well settled that the Court will not inquire into the motives of the
Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily
the judge of the necessity of an enactment or of any of its provisions, and every presumption is
in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the
law, it may not annul the legislation if not palpably in excess of the legislative power.
Furthermore, the test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find
1188
he provisions are not unreasonable. These principles also answer various other arguments
raised against the law, some of which are: that the law does not promote general welfare; that
thousands of aliens would be thrown out of employment; that prices will increase because of the
elimination of competition; that there is no need for the legislation; that adequate replacement is
problematical; that there may be general breakdown; that there would be repercussions from
foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law
which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals the real purpose of the bill, which is to
nationalize the retail business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
"No bill which may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill."
What the above provision prohibits is duplicity, that is, if its title completely fails to apprise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always
been included within the term regulation.
1189
"Under the title of an act to 'regulate', the sale of intoxicating liquors, the Legislature
may prohibit the sale of intoxicating liquors." (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)
"Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the title, the title To regulate the sale of intoxicating liquors, etc."
sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to
persons in the habit of getting intoxicated; such matters being properly included within the
subject of regulating the sale." (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
"The word 'regulate' is of broad import, and necessarily implies some degree of restraintand
prohibition of acts usually done in connection with the thing to be regulated. While word
regulate' does not ordinarily convey meaning of prohibit, there is no absolute reason why it
should not have such meaning when used in delegating police power in connection with a thing
the best or only efficacious regulation of which involves suppression." (State vs. Morton, 162
So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the
title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
Sec. 4803, p. 345.) The above rule was followed when the title of the Act in question adopted
the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also
contains other rules for the regulation of the retail trade, which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
"prohibit", there would have been many provisions not f alling within the scope of the title which
would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under which a simple or general term should be
adopted in the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in
its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and
prevent the enactment into law of matters
1190
which have not received the notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have not been apprised of the nature of the
law, especially the nationalization and prohibition provisions. The legislators took active interest
in the discussion of the law, and a great many of the persons affected by the prohibition in the
law conducted a campaign against its approval. It cannot be claimed, therefore, that the
reasons for declaring the law invalid ever existed. The objection must therefore, be overruled.

IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby
of the Charter of the United Nations and of the Declaration of Human Rights adopted by the
United Nations General Assembly. We find no merit in the above contention. The United
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. 2932), and the Declaration
of Human Rights contains nothing more than a mere recommendation, or a common standard
of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United
Nations Charter aid of the Declaration of Human Rights can be inferred from the fact that
members of the United Nations Organization, such as Norway and Denmark, prohibit foreigners
from engaging in retail trade, and in most nations of the world laws against foreigners engaged
in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of
April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees
is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any
other country." But the nationals of China are not dis-
1191
criminated against because nationals of all other countries, except those of the United States,
who are granted special rights by the Constitution, are all prohibited f rom engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257,
260), and the same may never curtail or restrict the scope of the police power of the State
(Palston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a
real actual threat and danger to national economy posed by alien dominance and control of the
retail business and free citizens and country from such 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 f act 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 en-
1192
tered into on the subject and the police power may not be curtailed or surrendered by any treaty
or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have
been made less harsh in its impact on the aliens. Thus it is stated that 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.
Parás, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepción, Reyes, J.
L., Endencia, and Felix, JJ.,concur.
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an Act
passed by the Congress and duly approved by the President of the Republic. But the rule does
not preclude courts from inquiring and determining whether the Act offends against a provision
or provisions of the Constitution. I am satisfied that the Act assailed as violative of the due
process of law and the equal protection of the laws clauses of the Constitution does not infringe
upon them, insofar as it affects associations, partnerships or corporations, the capital of which is
not wholly owned by citizens of the Philippines, and aliens, who are not and have not been
engaged in the retail business. I am, however, unable to persuade myself that it does not violate
said clauses insofar as the Act applies to associations and partnerships referred to in the Act
and to aliens, who are and have
1193
heretofore been engaged in said business. When they did engage in the retail business there
was no prohibition on or against them to engage in it. They assumed and believed in good faith
they were entitled to engage in the business. The Act allows aliens to continue in business until
their death or voluntary retirement f rom the business or forfeiture of their license; and
corporations, associations or partnerships, the capital of which is not wholly owned by citizens
of the Philippines to continue in the business for a period of ten years from the date of the
approval of the Act (19 June 1954) or until the expiry of the term of the existence of the
association or partnership or corporation, whichever event comes first. The prohibition on
corporations, the capital of which is not wholly owned by citizens of the Philippines, to engage in
the retail business for a period of more than ten years from the date of the approval of the Act or
beyond the term of their corporate existence, whichever event comes first, is valid and lawful,
because the continuance of the existence of such corporations is subject to whatever the
Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to
engage in the retail business by associations and partnerships, the capital of which is not wholly
owned by citizens of the Philippines, after ten years from the date of the approval of the Act,
even bef ore the end of the term of their existence as agreed upon by the associates and
partners, and by alien heirs to whom the retail business is transmitted by the death of an alien
engaged in the business, or by his executor or administrator, amounts to a deprivation of their
property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the sixmonth period granted to alien heirs of a
deceased alien,
________________
1
Section 76, Act No. 1459.
1194
his executor or administrator, to liquidate the business, do not cure the defect of the law,
because the effect of the prohibition is to compel them to sell or dispose of their business. The
price obtainable at such forced sale of the business would be inadequate to reimburse and
compensate the associates or partners of the association or partnership, and the alien heirs of a
deceased alien, engaged in the retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the business. The goodwill that
the association, partnership and the alien had built up during a long period of effort, patience
and perseverance forms part of such business. The constitutional provisions that no person
shall be deprived of his property without due process of law 1and that no person shall be denied
the equal protection of the laws 2 would have no meaning as applied to associations or
partnerships and alien heirs of an alien engaged in the retail business if they were to be
compelled to sell or dispose of their business within ten years from the date of the approval of
the Act and before the end of the term of the existence of the associations and partnerships as
agreed upon by the associates and partners and within six months after the death of their
B.
predecessorin-interest.
The authors of the Constitution were vigilant, caref ul and zealous in the safeguard of the
ownership of private agricultural lands which together with the lands of the public domain
constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and
prudent to deprive aliens and their heirs of such lands, 3
 For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels
associations and partnerships referred to therein to wind up their retail business within ten years
from the date of the approval of the Act

________________

1
Section 1(1), Article III, of the Constitution.
2
Ibid.
3
Section 5, Article XIII, of the Constitution.
1195
even before the expiry of the term of their existence as agreed upon by the associates and
partners and section 3 of the Act, insofar as it compels the alien heirs of a deceased alien
engaged in the retail business in his lifetime, his executor or administrator, to liquidate the
business, are invalid, for they violate the due process of law and the equal protection of the laws
clauses of the Constitution.
Petition denied.

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