G.R. No. L-24761             September 7, 1965 7.
7. That said property qualifications are inconsistent with the nature and essence of the Republican
LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective capacities as Chair-
man and Members of the Commission on Elections, and the COMMISSION ON ELECTIONS, respondents.
---------------------------
G.R. No. L-24828             September 7, 1965
FELIPE N. AUREA and MELECIO MALABANAN, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
 The Court RESOLVED, without prejudice to rendering an extended decision, to declare that said Re-
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon G. Maquera vs. Juan Borra, et al.," and case G.R.
No. L-24828, "Felipe N. Aurea and Melecio Malabanan vs. Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all candidates for national, provincial, city and municipal
offices" to post a surety bond equivalent to the one-year salary or emoluments of the position to
which he is a candidate, which bond shall be forfeited in favor of the national, provincial, city or mu-
nicipal government concerned if the candidate, except when declared winner, fails to obtain at least
10% of the votes cast for the office to which he has filed his certificate of candidacy, there being
not more than four (4) candidates for the same office;"
2. That, in compliance with said Republic Act No. 4421, the Commission on Elections had, on July 20,
1965, decided to require all candidates for President, Vice-President, Senator and Member of the
House of Representatives to file a surety bond, by a bonding company of good reputation, acceptable
to the Commission, in the sums of P60,000.00 and P40,000.00, for President and Vice-President,
respectively, and P32,000.00 for Senator and Member of the House of Representatives;
3. That, in consequence of said Republic Act No. 4421 and the aforementioned action of the Com-
mission on Elections, every candidate has to pay the premium charged by bonding companies, and, to
offer thereto, either his own properties, worth, at least, the amount of the surety bond, or properties
of the same worth, belonging to other persons willing to accommodate him, by way of counter-bond
in favor of said bonding companies;
4. That the effect of said Republic Act No. 4421 is, therefore, to prevent or disqualify from running
for President, Vice-President, Senator or Member of the House of Representatives those persons who,
although having the qualifications prescribed by the Constitution therefore, cannot file the surety
bond aforementioned, owing to failure to pay the premium charged by the bonding company and/or
lack of the property necessary for said counter-bond;
5. That said Republic Act No. 4421 has, likewise, the effect of disqualifying for provincial, city or
municipal elective offices, persons who, although possessing the qualifications prescribed by law
therefor, cannot pay said premium and/or do not have the property essential for the aforementioned
counter-bond;
6. That said Republic Act No. 4421 has, accordingly, the effect of imposing property qualifications in
order that a person could run for a public office and that the people could validly vote for him;
system ordained in our Constitution and the principle of social justice underlying the same, for said
political system is premised upon the tenet that sovereignty resides in the people and all government
authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be
voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice
presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by
reason of poverty, be denied the chance to be elected to public office; and
8. That the bond required in Republic Act No. 4421 and the confiscation of said bond are not predi-
cated upon the necessity of defraying certain expenses or of compensating services given in connec-
tion with elections, and is, therefore, arbitrary and oppressive.
public Act No. 4421 is unconstitutional and hence null and void, and, hence, to enjoin respondents
herein, as well as their representatives and agents, from enforcing and/or implementing said constitu-
tional enactment.
Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon., Makalintal and Zaldivar, JJ., concur.

Bengzon, C.J., took no part.

Barrera, J., is on leave.
Separate Opinions
BENGZON, J.P., J., concurring:.
A democratic form of government requires that political rights be enjoyed by the citizens regardless
of social or economic distinctions. Such is our government. As far back as 1899, the Representatives
of the Filipino people adopted a Political Constitution at Malolos, Bulacan, providing that: "The political
association of all the Filipinos constitutes a nation, whose state is called the Philippine Republic"; "The
Philippine Republic is free and independent"; and "Sovereignty resides exclusively in the
people." (Arts. 1, 2 and 3.) A generation later, in 1935, the Filipino people, imploring the aid of Di-
vine Providence, ordained and promulgated the present Constitution of the Philippines, stating the
same principle: "The Philippines is a republican state. Sovereignty resides in the people and all gov-
ernment authority emanates from them." (See. 1, Art. II). Clearly and solemnly, therefore, our citizen-
ry have thus been given the supreme guaranty of a democratic way of life, with all its freedom and
limitations, all its rights and duties.
Among the political rights of a Filipino citizen is the right to vote and be voted for a public office.
The Constitution has given the right of suffrage to "citizens of the Philippines not otherwise disquali-
fied by law who are twenty-one years of age or over and are able to read and write, and who shall
have resided in the Philippines for one year and in the municipality wherein they propose to vote for
at least six months preceding the election." (Sec. 1, Art. V.)
It is within the power of Congress, however, to prescribe the manner of exercising political rights so
long as it does not run counter to the Constitution. The Revised Election Code (RA 180) is the chief
instance of the exercise of such legislative power.
Republic Act 4421, effective June 19, 1965, incorporated to the Revised Election Code:
SEC. 36-A. Posting of bond by candidates; exception; forfeiture. — All candidates for national, pro-
vincial, city and municipal offices shall post a surety bond equivalent to the one-year salary or emol-
uments of the position to which he is a candidate, which bond shall be forfeited in favor of the na-
1
tional, provincial, city or municipal government concerned if the candidate, except when declared
winner, fails to obtain at least ten per cent of the votes cast for the office to which he has filed his
certificate of candidacy there being not more than four candidates for the same office.
The Commission on Elections, implementing Sec. 36-A aforementioned, adopted on July 20, 1965 the
following guidelines for the purpose of the November 9, 1965 elections:
1. WHO SHALL POST SURETY BOND — All candidates for national offices shall post a surety bond. A
candidate who withdraws his candidacy or ceases to be one, may ask for the return or cancellation of
his bond. A party may post surety bond for each of its official candidates.
2. WHEN TO FILE — On or before September 10, 1965, to coincide with the last day for filing cer-
tificates of candidacy, to facilitate processing of both bond and certificates of candidacy by the Law
Department.
3. WHERE TO FILE — The surety bond shall be filed with the Cash Division, Commission on Elections.
Cash bonds may be allowed and the same to be filed in the Commission.
4. AMOUNT OF BOND — The surety bond shall be equivalent to the one-year salary or emoluments
of the position to which he is a candidate, to wit:
President
P60,000
(R.A. 4134)
Vice-President
P40,000
— do —
Senators
P32,000
— do —
Congressmen
P32,000
— do —
5. CONDITION OF THE BOND — That the bond shall be forfeited in favor of the national government
if the candidate, except when declared the winner, fails to obtain at least ten percent of the votes
cast for the office to which he has filed his certificate of candidacy, there being not more than four
candidates for the same office.
6. FAILURE TO POST SURETY BOND — If a candidate fails to post the required surety bond, the
Commission on Elections shall refuse to give due course to the certificate of candidacy of said candi-
date.
7. SURETY — A bonding company of good reputation and acceptable to the Commission.
8. FORFEITURE — The 10% required number of votes shall be based on and determined by the cer-
tificate of canvass and proclamation.
At bar are petitions that question the constitutionality of Republic Act 4421 in the ground that the
same is undemocratic and contrary to the letter and spirit of the Constitution.
The avowed purpose of Republic Act 4421 in requiring a candidate to post a bond equal to a year's
salary of the office for which he will run is to curb the practice of so-called nuisance candidates. Said
the explanatory note to said law:
We have had sad experiences along that line. When a person, having the same name as that of a
strong candidate, files his candidacy for the same position sought by the latter, this act has the
ultimate effect of frustrating the true intent of the voters. While their intent was to vote for the
publicly known strong candidate, their votes could be credited to the nuisance candidate. If this prac-
tice is not curbed, the Filipino people may find the wrong men elected to an office.
1awphîl.nèt
Such an objective is indeed within the competence of the legislature to provide for. Nonetheless, the
purpose alone does not resolve the constitutionality of a statute. It must also be asked whether the
effect of said law is or is not to transgress the fundamental law.
Does the law, it may then be asked, operate to bar bona fide candidates from running for office
because of their financial inability to meet the bond required? For this the test must be the amount
at which the bond is fixed. Where it is fixed at an amount that will impose no hardship on any person
for whom there should be any desire to vote as a nominee for an office, and yet enough to prevent
the filing of certificates of candidates by anyone, regardless of whether or not he is a desirable can-
didate, it is a reasonable means to regulate elections. On the otherhand, if it puts a real barrier that
would stop many suitable men and women from presenting themselves as prospective candidates, it
becomes unjustifiable, for it would defeat its very objective of securing the right of honest candi-
dates to run for public office.
Foremost democracies have similar measure to discourage "freak and propaganda candidates. One was
adopted in the electoral system of England. A candidate for the House of Commons, where each
member receives 3,250 pounds annual compensation (formerly 1,000 pounds) is required, by the
Representatives of the People Act of 1918, to deposit 150 pounds with the returning officer at the
time of nomination, the money to be forfeited if he failed to secure 1/8 of the votes. *
In the United States of America a fee system obtains in some states whereby candidates are required
to pay filing fees — frequently to help defray costs of election services — ranging from one dollar
upwards or a certain percentage of the annual salary of the office sought, the percentage being from
1/4% to 5%.**
It should be noted that in the foregoing the deposits or fees are based on or constitute a certain
percentage of the yearly salary. The amount of the bond required by RA 4421 is, as noted, equal to
the one-year salary or emolument of the office. It is quite evident, therefore, that several or a con-
siderable number of deserving, honest and sincere prospective candidates for that office would be
prevented from running in the election solely due to their being less endowed with the material things
in life. It is worth remembering that Section 48 of the Revised Election Code provides: "No candidate
shall spend for his election campaign more than the total amount of the emoluments for one year
attached to the office for which he is a candidate." Thus, the amount of a one-year salary is consid-
ered by the law itself to be substantial enough to finance the entire election campaign of the candi-
date. For Congress, therefore, to require such amount to be posted in the form of surety bond, with
the danger of forfeiting the same in the event of failure to obtain the required percentage of votes,
unless there are more than four candidates, places a financial burden on honest candidates that will
in effect disqualify some of them who would otherwise have been qualified and bona fide candidates.
The Constitution, in providing for the qualification of Congressmen, sets forth only age, citizenship,
voting and residence qualifications. No property qualification of any kind is thereunder required. Since
the effect of Republic Act 4421 is to require of candidates for Congress a substantial property quali-
fication, and to disqualify those who do not meet the same, it goes against the provision of the
Constitution which, in line with its democratic character, requires no property qualification for the
right to hold said public office.
2
Freedom of the voters to exercise the elective franchise at a general election implies the right to
freely choose from all qualified candidates for public office. The imposition of unwarranted restrictions
and hindrances precluding qualified candidates from running is, therefore, violative of the constitution-
al guaranty of freedom in the exercise of elective franchise. It seriously interferes with the right of
the electorate to choose freely from among those eligible to office whomever they may desire. ***
Republic Act 4421, moreover, relates a person's right to run for office to the degree of success he
will show at the polls. A candidate, however, has no less a right to run when he faces prospects of
defeat as when he is expected to win. Consequently, for the law to impose on said candidate —
should he lose by the fatal margin — a financial penalty not imposed on others would unreasonably
deny him equal protection of the law. It is, also, in my opinion, unconstitutional on this account. (Sec.
1 [1], Art. III, Phil. Const.)
Nuisance candidates, as an evil to be remedied, do not justify the adoption of measures that would
bar poor candidates from running for office. Republic Act 4421 in fact enables rich candidates,
whether nuisance or not, to present themselves for election. Consequently, it cannot be sustained as
a valid regulation of elections to secure the expression of the popular will.
I fully concur, therefore, with the majority opinion.
Regala, J., concurs.
G.R. No. L-14639            March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
 Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this applica-
tion for habeas corpus submits for decision. While hardly to be expected to be met with in this mod-
ern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is
kept in the forefront of our minds the basic principles of popular government, and if we give expres-
sion to the paramount purpose for which the courts, as an independent power of such a government,
were constituted. The primary question is — Shall the judiciary permit a government of the men
instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove prof-
itable reading for other departments of the government, the facts are these: The Mayor of the city
of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses
in the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with
some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed
them aboard the steamers that awaited their arrival. The women were given no opportunity to collect
their belongings, and apparently were under the impression that they were being taken to a police
station for an investigation. They had no knowledge that they were destined for a life in Mindanao.
They had not been asked if they wished to depart from that region and had neither directly nor indi-
rectly given their consent to the deportation. The involuntary guests were received on board the
steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The
two steamers with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted
for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael
Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the city of Manila. The
further happenings to these women and the serious charges growing out of alleged ill-treatment are
of public interest, but are not essential to the disposition of this case. Suffice it to say, generally,
that some of the women married, others assumed more or less clandestine relations with men, others
went to work in different capacities, others assumed a life unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees present-
ed an application for habeas corpus to a member of the Supreme Court. Subsequently, the applica-
tion, through stipulation of the parties, was made to include all of the women who were sent away
from Manila to Davao and, as the same questions concerned them all, the application will be consid-
ered as including them. The application set forth the salient facts, which need not be repeated, and
alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of
was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because
the respondents did not have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit at-
tached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to question
of a member of the court, that these women had been sent out of Manila without their consent. The
court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the prov-
ince of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were noti-
fied by the police and the secret service to appear before the court. The fiscal appeared, repeated
the facts more comprehensively, reiterated the stand taken by him when pleading to the original
3
petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao
and the answer thereto, and telegrams that had passed between the Director of Labor and the attor-
ney for that Bureau then in Davao, and offered certain affidavits showing that the women were con-
tained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme Court because the women had
never been under his control, because they were at liberty in the Province of Davao, and because
they had married or signed contracts as laborers. Respondent Yñigo answered alleging that he did
not have any of the women under his control and that therefore it was impossible for him to obey
the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order,
which related that the respondents had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed that those of the women not in
Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January
13, 1919, unless the women should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or unless the respondents should
demonstrate some other legal motives that made compliance impossible. It was further stated that
the question of whether the respondents were in contempt of court would later be decided and the
reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the
court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city
of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the
replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25,
1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and seventy women were isolat-
ed from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly,
that such was not the case is shown by the mere fact that the presence of the police and the con-
stabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admit-
ted by the respondents.
With this situation, a court would next expect to resolve the question — By authority of what law
did the Mayor and the Chief of Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find
—
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Mani-
la provide for the conviction and punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have
been convicted of vagrancy, to the homeland. New York and other States have statutes providing for
the commitment to the House of Refuge of women convicted of being common prostitutes. Always a
law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or order. But one can search in
vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila
or the chief of police of that city to force citizens of the Philippine Islands — and these women
despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens — to change their domicile
from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public
officer who, not being expressly authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves such
power, then any other official can do the same. And if any official can exercise the power, then all
persons would have just as much right to do so. And if a prostitute could be sent against her wishes
and under no law from one locality to another within the country, then officialdom can hold the same
club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or im-
prisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official,
no matter how high, is above the law. The courts are the forum which functionate to safeguard indi-
vidual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion
4
of the Supreme Court of the United States, "is the only supreme power in our system of govern-
ment, and every man who by accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations which it imposes upon the exer-
cise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in
the Philippines who shall banish any person to a place more than two hundred kilometers distant from
his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not
less than three hundred and twenty-five and not more than three thousand two hundred and fifty
pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character
in force in the Philippines who shall compel any person to change his domicile or residence shall suffer
the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than
six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a crimi-
nal prosecution just as vigorously as they have defended the same official in this action. Neverthe-
less, that the act may be a crime and that the persons guilty thereof can be proceeded against, is
no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be
referred to — "It would be a monstrous anomaly in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a
crime, and therefore might be continued indefinitely until the guilty party was tried and punished
therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich.,
416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best and only sufficient defense of personal free-
dom. Any further rights of the parties are left untouched by decision on the writ, whose principal
purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it impossi-
ble for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be
submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure,
sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a per-
son is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code
of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be pre-
sented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible any-
where in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec.
526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that
the women had any means by which to advance their plea before that court. On the other hand, it
was shown that the petitioners with their attorneys, and the two original respondents with their at-
torney, were in Manila; it was shown that the case involved parties situated in different parts of the
Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it
was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decid-
ed immediately by the appellate court. The failure of the superior court to consider the application
and then to grant the writ would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had
been imprisoned. Placed in Davao without either money or personal belongings, they were prevented
from exercising the liberty of going when and where they pleased. The restraint of liberty which be-
gan in Manila continued until the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him be-
5
yond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the
court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the
party to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the chief of
police, acting under no authority of law, could deport these women from the city of Manila to Davao,
the same officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision. Never-
theless, strange as it may seem, a close examination of the authorities fails to reveal any analogous
case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdic-
tion of the State to bring into the State a minor child under guardianship in the State, who has been
and continues to be detained in another State. The membership of the Michigan Supreme Court at
this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christian-
cy, justices. On the question presented the court was equally divided. Campbell, J., with whom con-
curred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large extent on his conception of the Eng-
lish decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only
the following eloquent passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on
the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have
been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its benefits and securities
by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that eva-
sion of that great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined without
delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the sub-
ject being brought to their notice. . . .
The second proposition — that the statutory provisions are confined to the case of imprisonment
within the state — seems to me to be based upon a misconception as to the source of our jurisdic-
tion. It was never the case in England that the court of king's bench derived its jurisdiction to issue
and enforce this writ from the statute. Statutes were not passed to give the right, but to compel
the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is
directed to and served upon, not the person confined, but his jailor. It does not reach the former
except through the latter. The officer or person who serves it does not unbar the prison doors, and
set the prisoner free, but the court relieves him by compelling the oppressor to release his con-
straint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordi-
nary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party
is within reach of process, so that by the power of the court he can be compelled to release his
grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits
of the state, except as greater distance may affect it. The important question is, where the power of
control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs.
Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte
Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do
so. His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey
the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded
the defendant to have the body of the child before a judge in chambers at the Royal Courts of Jus-
tice immediately after the receipt of the writ, together with the cause of her being taken and de-
tained. That is a command to bring the child before the judge and must be obeyed, unless some
lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession of the child before the issuing of the writ,
the defendant had no longer power to produce the child, that might be an answer; but in the ab-
sence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt
of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argu-
ment to shift the question of contempt to some anterior period for the purpose of showing that
what was done at some time prior to the writ cannot be a contempt. But the question is not as to
what was done before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re
Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q.
B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
6
his control and out of his custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present
in court, and refusing to produce them, ordered that he be committed to the custody of the marshall
until he should produce the negroes, or be otherwise discharged in due course of law. The court
afterwards ordered that Davis be released upon the production of two of the negroes, for one of the
negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the
last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respon-
dents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feli-
ciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila wait-
ed until the 21st of November before sending a telegram to the provincial governor of Davao. Ac-
cording to the response of the attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who should not be permitted to do
so because of having contracted debts. The half-hearted effort naturally resulted in none of the par-
ties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be found in the municipali-
ty of Davao, and that about this number either returned at their own expense or were produced at
the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily
in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed
the order. Their excuses for the non-production of the persons were far from sufficient. The, authori-
ties cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a
habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring
to an earlier decision of the Court, said: "We thought that, having brought about that state of things
by his own illegal act, he must take the consequences; and we said that he was bound to use every
effort to get the child back; that he must do much more than write letters for the purpose; that he
must advertise in America, and even if necessary himself go after the child, and do everything that
mortal man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident
finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investi-
gation. If any particular individual is still restrained of her liberty, it can be made the object of sepa-
rate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bu-
reau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Mani-
la.
The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in obedi-
ence to a writ of habeas corpus when he has power to do so, is a contempt committed in the face
of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax,
and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this
does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacen-
dero Yñigo appears to have been drawn into the case through a misconstruction by counsel of tele-
graphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of any disre-
spect to the court, his counter-motion to strike from the record the memorandum of attorney for
the petitioners, which brings him into this undesirable position, must be granted. When all is said and
done, as far as this record discloses, the official who was primarily responsible for the unlawful depor-
tation, who ordered the police to accomplish the same, who made arrangements for the steamers
7
and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as
the head of the city government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the
social evil was commendable. His methods were unlawful. His regard for the writ of habeas corpus
issued by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined
to this stern view. It would also be possible to find that since respondent Lukban did comply sub-
stantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect with-
out being unduly oppressive — such an amount is P100.
In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk
of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the
fiscal of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses
of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a steamer and transported to Davao,
considering that the existence of the said houses of prostitution has been tolerated for so long a
time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted without
authority of any legal provision which constitutes an exception to the laws guaranteeing the liberty
and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the
distant district of Davao. The said governmental authority, in carrying out his intention to suppress
the segregated district or the community formed by those women in Gardenia Street, could have
obliged the said women to return to their former residences in this city or in the provinces, without
the necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find
any apparent disobedience and marked absence of respect in the steps taken by the mayor of the
city and his subordinates, if we take into account the difficulties encountered in bringing the said
women who were free at Davao and presenting them before this court within the time fixed, inas-
much as it does not appear that the said women were living together in a given place. It was not
because they were really detained, but because on the first days there were no houses in which they
could live with a relative independent from one another, and as a proof that they were free a number
of them returned to Manila and the others succeeded in living separate from their companions who
continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a re-
proachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally and
for some days reside, the inhabitants thereof being more than three hundred thousand (300,000)
who can not, with indifference and without repugnance, live in the same place with so many unfortu-
nate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a
house of pandering or prostitution in the midst of an enlightened population, for, although there were
no positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public ad-
ministration, acting correctly, in exercising the inevitable duty of ordering the closing and abandon-
ment of a house of prostitution ostensibly open to the public, and of obliging the inmates thereof to
leave it, although such a house is inhabited by its true owner who invokes in his behalf the protec-
tion of the constitutional law guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke
in his favor the constitutional law which guarantees his liberty and individual rights, should the admin-
istrative authority order his hospitalization, reclusion, or concentration in a certain island or distant
point in order to free from contagious the great majority of the inhabitants of the country who for-
tunately do not have such diseases. The same reasons exist or stand good with respect to the unfor-
tunate women dedicated to prostitution, and such reasons become stronger because the first persons
named have contracted their diseases without their knowledge and even against their will, whereas
the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all
its consequences, knowing positively that their constant intercourse with men of all classes, not-
withstanding the cleanliness and precaution which they are wont to adopt, gives way to the spread
or multiplication of the disease known as syphilis, a venereal disease, which, although it constitutes a
8
secret disease among men and women, is still prejudicial to the human species in the same degree,
scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases
which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the Constitu-
tion, because it is evident that she can not join the society of decent women nor can she expect to
get the same respect that is due to the latter, nor is it possible for her to live within the community
or society with the same liberty and rights enjoyed by every citizen. Considering her dishonorable
conduct and life, she should therefore be comprised within that class which is always subject to the
police and sanitary regulations conducive to the maintenance of public decency and morality and to
the conservation of public health, and for this reason it should not permitted that the unfortunate
women dedicated to prostitution evade the just orders and resolutions adopted by the administrative
authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which being
a very drastic remedy may be considered arbitrary, have failed to consider with due reflection the
interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of
those who criticize and censure the mayor are fathers of families and are in duty bound to take care
of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnor-
mal life they assumed, were obliged to change their residence not by a private citizen but by the
mayor of the city who is directly responsible for the conservation of public health and social morality,
the latter could take the step he had taken, availing himself of the services of the police in good
faith and only with the purpose of protecting the immense majority of the population from the social
evils and diseases which the houses of prostitution situated in Gardenia Street have been producing,
which houses have been constituting for years a true center for the propagation of general diseases
and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said
houses of prostitution and the change of the domicile of the inmates thereof, the mayor did not in
bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every
Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the free practice of their shameful
profession.
In very highly advanced and civilized countries, there have been adopted by the administrative author-
ities similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to
the people, although it is true that in the execution of such measures more humane and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always
had in view the ultimate object of the Government for the sake of the community, that is, putting an
end to the living together in a certain place of women dedicated to prostitution and changing their
domicile, with the problematical hope that they adopt another manner of living which is better and
more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be transmit-
ted to the mayor within the shortest time possible for its due compliance. The costs shall be charged
de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feli-
ciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila wait-
ed until the 21st of November before sending a telegram to the provincial governor of Davao. Ac-
cording to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who should not be permitted to do
so because of having contracted debts. The half-hearted effort naturally resulted in none of the par-
ties in question being brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the respon-
dents, for the purpose of complying with the order of the court, could have, (1) produced the bodies
of the persons according to the command of the writ; (2) shown by affidavits that on account of
sickness or infirmity the said women could not safely be brought before this court; and (3) presented
affidavits to show that the parties in question or their lawyers waived their right to be present. Ac-
cording to the same decision, the said respondents ". . . did not produce the bodies of the persons
in whose behalf the writ was granted; did not show impossibility of performance; and did not present
writings, that waived the right to be present by those interested. Instead, a few stereotyped affi-
davits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary dili-
gence a considerable number of the women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be found in the municipality of
Davao, and that about this number either returned at their own expense or were produced at the
second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a
9
second order referred to in the decision was issued on December 10, 1918, requiring the respon-
dents to produce before the court, on January 13, 1919, the women who were not in Manila, unless
they could show that it was impossible to comply with the said order on the two grounds previously
mentioned. With respect to this second order, the same decision has the following to say:
In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the respon-
dents to this effect; that, through other means, fifty-nine (59) women have already returned to Mani-
la, but notwithstanding the efforts made to find them it was not possible to locate the whereabouts
of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women
who, as has been previously said, have been illegally detained by Mayor Lukban and Chief of Police
Hohmann and transported to Davao against their will, only eight (8) have been brought to Manila and
presented before this court by the respondents in compliance with the said two orders. Fifty-nine
(59) of them have returned to Manila through other means not furnished by the respondents, twen-
ty-six of whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao.
The said attorney paid out of his own pocket the transportation of the said twenty-six women.
Adding to these numbers the other seven (7) women who returned to this city at their own expense
before January 13 we have a total of sixty-six (66), which evidently proves, on the one hand, the
falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918,
giving as one of the reasons for their inability to present any of the said women that the latter were
content with their life in Mindanao and did not desire to return to Manila; and, on the other hand,
that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and
principal in all that refers to the compliance with the orders issued by this court, could bring before
December 2nd, the date of the first hearing of the case, as well as before January 13th, the date
fixed for the compliance with the second order, if not the seventy-four (74) women already indicated,
at least a great number of them, or at least sixty (60) of them, as is said in the majority decision,
inasmuch as the said respondent could count upon the aid of the Constabulary forces and the munic-
ipal police, and had transportation facilities for the purpose. But the said respondent mayor brought
only eight (8) of the women before this court on January 13th. This fact can not, in my judgment,
with due respect to the majority opinion, justify the conclusion that the said respondent has substan-
tially complied with the second order of this court, but on the other hand demonstrates that he had
not complied with the mandate of this court in its first and second orders; that neither of the said
orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is,
according to the majority decision, principally responsible for the contempt, to which conclusion I
agree. The conduct of the said respondent with respect to the second order confirms the contempt
committed by non-compliance with the first order and constitutes a new contempt because of non-
compliance with the second, because of the production of only eight (8) of the one hundred and
eighty-one (181) women who have been illegally detained by virtue of his order and transported to
Davao against their will, committing the twenty-six (26) women who could not be found in Davao,
demonstrates in my opinion that, notwithstanding the nature of the case which deals with the reme-
dy of habeas corpus, presented by the petitioners and involving the question whether they should or
not be granted their liberty, the respondent has not given due attention to the same nor has he
made any effort to comply with the second order. In other words, he has disobeyed the said two
orders; has despised the authority of this court; has failed to give the respect due to justice; and
lastly, he has created and placed obstacles to the administration of justice in the said habeas corpus
proceeding, thus preventing, because of his notorious disobedience, the resolution of the said pro-
ceeding with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the court;
and he is guilty of contempt whose conduct is such as tends to bring the authority and administra-
tion of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes contempt,
unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or at-
tempt to obstruct the service of legal process. If a person hinders or prevents the service of process
by deceiving the officer or circumventing him by any means, the result is the same as though he had
obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for
the law and for the means it has provided in civilized communities for establishing justice, since true
respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in
the courts and obedience to their orders and just measures is so essentially a part of the life of the
courts that it would be difficult to conceive of their usefulness or efficiency as existing without it.
Therefore it may be said generally that where due respect for the courts as ministers of the law is
wanting, a necessity arises for the use of compulsion, not, however, so much to excite individual
respect as to compel obedience or to remove an unlawful or unwarranted interference with the ad-
ministration of justice. (Ruling Case Law, vol. 6, p. 487.)
10
The power to punish for contempt is as old as the law itself, and has been exercised from the earli-
est times. In England it has been exerted when the contempt consisted of scandalizing the sovereign
or his ministers, the law-making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are concerned, and in some
degree so far as the legislative department is concerned, is obsolete, but it has been almost univer-
sally preserved so far as regards the judicial department. The power which the courts have of vindi-
cating their own authority is a necessary incident to every court of justice, whether of record or not;
and the authority for issuing attachments in a proper case for contempts out of court, it has been
declared, stands upon the same immemorial usage as supports the whole fabric of the common law. .
. . (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and
of the further fact that some of them were obliged to come to this city at their own expense while
still others were brought to Manila by the attorney for the petitioners, who paid out of his own
pocket the transportation of the said women; and the delay which was necessarily incurred in the
resolution of the petition interposed by the said petitioners and which was due to the fact that the
said orders were not opportunately and duly obeyed and complied with, are circumstances which
should be taken into account in imposing upon the respondent Justo Lukban the penalty correspond-
ing to the contempt committed by him, a penalty which, according to section 236 of the Code of
Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months,
or both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this pro-
ceeding should be transmitted to the Attorney-General in order that, after a study of the same and
deduction from the testimony which he may deem necessary, and the proper transmittal of the same
to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present
the corresponding informations for the prosecution and punishment of the crimes which have been
committed on the occasion when the illegal detention of the women was carried into effect by Mayor
Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will be one of
the means whereby the just hope expressed in the majority decision will be realized, that is, that in
the Philippine Islands there should exist a government of laws and not a government of men and that
this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect
individual liberty from illegal encroachments.
ANTONIO J. VILLEGAS, in his capacity as Mayor of the City of Manila, Petitioner-Appellee, v. ABELAR-
DO SUBIDO, in his capacity as Commissioner of Civil Service, Respondent-Appellant.
Gregorio A. Ejercito and Felix C. Chavez for Petitioner-Appellee.
Solicitor General Antonio P. Barredo, Assistant Solicitor General Antonio A. Torres and Solicitor Augus-
to N. Amores for Respondent-Appellant.
SYNOPSIS
Respondent Commissioner of Civil Service, in Memorandum Circular No.18 dated April 10, 1964, re-
fused to note the appointments of ninety-one(91) women as street sweepers in the city government
of Manila and requested that their salaries or wages be withheld because in his opinion, the practice
of making them perform manual labor outside office premises exposes them to contempt and ridicule
and constitutes a violation of the traditional dignity and respect accorded Filipino woman hood. Upon
the filing of the certiorari and mandamus petition with preliminary injunction, the court a quo, noting
that the aforesaid Memorandum Circular 18 had already been set aside by the Office of the Presi-
dent, issued the writ prayed for to enjoin the respondent Commissioner from enforcing and imple-
menting the same and commanding him to note and record the said appointments. The respondent
appealed banking on a pending motion for reconsideration of the President’s order declaring without
force and effect said Memorandum Circular.
The Supreme Court affirmed the lower court’s decision that the Memorandum Circular in question may
not be enforced until and unless the Office of the President reconsiders its disapproval of the same.
It held that respondent-appellant Commissioner had relied, not on any law or rule, but simply on his
own concept of what policy to pursue, his conviction that to allow woman laborer to work outside
their offices would run counter to Filipino tradition, not being sufficient to exercise a right not ex-
pressly granted by law. The trend towards greater recognition of equal rights for both sexes and the
service of Filipino woman in such capacity as street sweepers argues strongly against this kind of
discrimination. Appealed decision affirmed.
SYLLABUS
1. POLITICAL LAW; PUBLIC OFFICERS; EXERCISE OF POWER EXPRESSLY GRANTED BY LAW; IN THE
ABSENCE OF A VALID GRANT OF AUTHORITY, THEY ARE DEVOID OF POWER. — Nothing is better
settled in the law than that a public official exercises power, not rights. The government itself is
merely an agency through which the will of the state is expressed and enforced. Its officers therefore
are likewise agents entrusted with the responsibility of discharging its functions. As such there is no
presumption that they are empowered to act. There must be a delegation of such authority either
express or implied. In the absence of a valid grant, they are devoid of power.
11
2. ID.; ID.; ID.; NO SUBSTITUTE FOR AUTHORITY CONFERRED BY LAW. — Departmental zeal may not
be permitted to out run the authority conferred by statute. Neither the high dignity of the office nor
the righteousness of motive then is an acceptable substitute. Otherwise, the rule of law becomes a
myth. Such an eventuality, we must take all pains to avoid.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; RECOGNITION OF WOMEN
WORKING AS STREET SWEEPERS; CASE AT BAR. — For the past six years at least, Filipino women
have been serving in that capacity among others as Metro Aides, an innovation introduced by the
First Lady. They have contributed along with the male employees in keeping Metro Manila clean, at-
tractive, and hygienic. There has been no offense to the well-known Filipino tradition of holding the
women in high esteem and respect. Moreover, as is quite obvious in civic parades where a contingent
of them usually takes part, they take pride-and justly so-in what they are doing. There would even be
less justification then even from the policy standpoint for a Memorandum Circular similar to that is-
sued by respondent and justifiably nullified by the Office of the President. Moreover, the trend to-
wards greater and greater recognition of equal rights for both sexes under the shelter of the equal
protection clause argues most strongly against this kind of discrimination.
DECISION
FERNANDO, J.:
There is an aspect of futility to this appeal from an ably-written and well-reasoned decision of the
then Judge Conrado M. Vasquez ordering then respondent Commissioner of Civil Service Abelardo
Subido, now deceased, "to (a) refrain from enforcing and implementing the directive contained in its
letter to the City Auditor of Manila dated October 5, 1966 (Annex D); (b) making the preliminary
injunction issued for this purpose to be permanent, and (c) commanding the respondent to note and
record the appointments of the 91 women street sweepers listed in Annex B of the petition." 1 An-
nex D reads as follows: "It has come to the knowledge of this Office that there are still women em-
ployed as street sweepers in the City, contrary to the provisions of Memorandum Circular No. 18, s.
1964, on the subject: ‘Women in Laborer Positions.’ Pursuant to said memorandum circular, this
Office will disapprove all appointments extended to females as street sweepers, when the same are
submitted to this Office. In view thereof, and to prevent disbursement of City funds for illegal em-
ployment and to preclude injustice to these female employees who may later be required to refund
whatever they may have received as salary or wages, it is requested that the salaries or wages of all
women street sweepers or women laborers employed as such, be withheld immediately." 2 The perti-
nent portion of such memorandum is worded thus: "This Office has observed that some offices which
employ women laborers make them perform work in the street alongside men workers. While it can-
not be denied that those occupying laborer positions should be made to perform the duties properly
belonging to such positions, it is the opinion of this Office that the practice of making them perform
manual labor outside office premises exposes them to contempt and ridicule and constitutes a viola-
tion of the traditional dignity and respect accorded Filipino womanhood . . . In view of the above, it
is directed that agencies affected put a stop immediately to the practice referred to above; other-
wise, this Office shall, except for justifiable reasons, be constrained to withhold approval of any or all
appointments to laborer positions extended to women and shall, accordingly, bring the matter to the
attention of the General Auditing Office." 3 Upon the filing of the certiorari and mandamus petition
with preliminary injunction, the plea for preliminary injunction was set for hearing. It resulted in this
order of then Judge Vasquez: "On motion of petitioner, it appearing that the respondent’s Memoran-
dum-Circular No. 18 dated April 10, 1964 had already been set aside by the Office of the President
of the Philippines, let a writ of preliminary injunction issue to enjoin the respondent from enforcing
and implementing said memorandum circular until further orders from this Court, upon the filing of
the petitioner of a bond and its approval by the Court in the sum of P5,000.00 to answer for dam-
ages that the respondent may sustain by reason of the issuance of said writ." 4
Clearly, the lower court decision is buttressed by the law and the applicable authorities.chanrobles
virtual lawlibrary
1. It was pointed out in the petition of the then Mayor Villegas in the lower court that the memoran-
dum on which then respondent Commissioner would base his refusal to note the appointments of the
91 women as street sweepers in the City government of Manila was his Memorandum Circular No. 18
dated April 10, 1964. It was then stated that it had been set aside and declared without force and
effect by the Office of the President under a fifth indorsement to respondent on September 14,
1965. 5 All that respondent could allege in the answer was that there was still a pending motion for
reconsideration. Why such a contention could not be taken seriously was made clear in the appealed
decision in this wise: "It is of no moment that the respondent, in a 6th Indorsement dated November
7, 1966, had requested the Office of the President to reconsider the ruling declaring Memorandum
Circular No. 18, series of 1964, as of no force and effect. Aside from the fact that the attempt to
secure a reconsideration of the said ruling was done more than one year after the promulgation of
the same, it is significant to note that the respondent sought the reconsideration only after the rul-
ing of this case on October 28, 1966. In any event, as the situation stands, the memorandum circu-
lar in question may not be enforced until and unless the Office of the President shall reconsider its
disapproval of the same." 6
2. The situation thus presented is one akin to that found in another case between the same parties,
likewise entitled Villegas v. Subido. 7 There as well as here, reliance of then respondent Commissioner
was not on any law or rule but simply on his own concept of what policy to pursue, in this instance
in accordance with his own personal predilection. Here he appeared to be unalterably convinced that
to allow women laborers to work outside their offices as street sweepers would run counter to Fil-
ipino tradition. The sincerity of his conviction is conceded, but that does not suffice. A public official
must be able to point to a particular provision of law or rule justifying the exercise of a challenged
authority. So it was correctly held in the decision on appeal. The pertinent excerpt from the cited
Villegas v. Subido decision follows: "One last word. Nothing is better settled in the law than that a
public official exercises power, not rights. The government itself is merely an agency through which
the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted
with the responsibility of discharging its functions. As such there is no presumption that they are
empowered to act. There must be a delegation of such authority, either express or implied. In the
12
absence of a valid grant, they are devoid of power. What they do suffers from a fatal infirmity. That
principle cannot be sufficiently stressed. In the appropriate language of Chief Justice Hughes: ‘It must
be conceded that departmental zeal may not be permitted to outrun the authority conferred by
statute.’ Neither the high dignity of the office nor the righteousness of the motive then is an ac-
ceptable substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we must take all
pains to avoid." 8
3. It might be said by way of a concluding observation that for the past six years at least, Filipino
women have been serving in that capacity among others as Metro Aides, an innovation introduced by
the First Lady. They have contributed along with the male employees in keeping Metro Manila clean,
attractive, and hygienic. There has been no offense to the well-known Filipino tradition of holding the
women in high esteem and respect. Moreover, as is quite obvious in civic parades where a contingent
of them usually takes part, they take pride — and justly so — in what they are doing. There would
even be less justification then even from the policy standpoint for a Memorandum Circular similar to
that issued by respondent and justifiably nullified by the Office of the President. Moreover, the trend
towards greater and greater recognition of equal rights for both sexes under the shelter of the equal
protection clause argues most strongly against this kind of discrimination. 9
4. If this case had not been decided earlier, it must have been due to the fact that with the lower
court deciding in favor of the then City Mayor and no restraining order having been issued by this
Court, the ninety-one street sweepers could continue with their work. Neither party then apparently
failed to manifest further interest in the outcome of this litigation. Moreover, it was not long after
this case was submitted for decision that the late respondent Commissioner left public office. Appar-
ently, his successor was of a different mind. Hence the case was not disposed of sooner.chanrobles
lawlibrary : rednad
WHEREFORE, the appealed decision is affirmed. No costs.
Aquino, Concepcion Jr., Abad Santos and De Castro, JJ., concur.
Barredo, J., took no part.
G.R. Nos. 77317-50               July 29, 1987
MADID MACAGA-AN, BATO-ALI UMPAT, HADJI DISAMBURUN MACAPODI, HADJI KIRAM BURUAN, HADJI
DIMASINDIL PANDAPATAN, AMER MANALUDNONG, HADJI AMER AMAI KUROT, HADJI MANGOTIM
MOLAN, HADJI DIMACALING MUNGORANGCA, HADJI MACABEBE PANGCOGA, QUIRINO MANAGKIRAN,
HADJI PAITO UMPARA, ODAL GUINDOLONGAN, DIMNATANG MAMARI, TOMINGUD COLAYO, USMAN DA-
LIDIG, ESMAEL ROMATO, DIAMPUAN GUBAT, TALIB MARANDACAN, DIMA BORUNGAWAN, DIMALNA
LIMGAS ANG, MACALANTONG MARCABAN, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, respondents.
FELICIANO, J.:
The 22 petitioners include municipal treasurers of various municipalities of Lanao del Norte and Lanao
del Sur, and the Officer-in-Charge of the Provincial Treasurer's Office of Lanao del Sur, as well as the
Provincial Auditor and the Assistant Provincial Auditor of Lanao del Sur. Petitioners were charged and
convicted in 33 cases for estafa through falsification of public and commercial documents (Article
315, in relation to Article 171, Revised Penal Code) in a decision of the Sandiganbayan promulgated
on 15 July 1981. The total amount of Government funds (treasury warrants) involved was somewhat
over P2.7 million.
On 14 March 1986, petitioners moved "to close their cases and release [their] bond[s]" on the
ground that they had been given amnesty by former President F. E. Marcos on 28 January 1986. The
Sandiganbayan required them to submit originals or authenticated copies of their amnesty papers,
which petitioners were unable to produce. Thereupon, the Sandiganbayan denied petitioners' motion.
In a motion for reconsideration, the accused sought to prove by secondary evidence their claim that
they had been granted amnesty by former President Marcos. The Tanodbayan objected to allowing
the accused to adduce secondary evidence of grant(s) of amnesty to the accused. In an extended
resolution dated 27 January 1987, the respondent Sandiganbayan denied the motion for reconsidera-
tion.
The petitioners now seek certiorari to review and set aside the extended resolution of the Sandigan-
bayan, claiming that the respondent court committed reversible error, firstly, in holding that Presiden-
tial Decree No. 1082, the applicable amnesty statue according to petitioners, did not apply to them;
and secondly, in not allowing them to present secondary evidence of the amnesty allegedly granted
by the former President to the petitioners.
The petitioners state that they applied for amnesty through the 3rd and 11th Amnesty Commission
(sic) of Lanao del Sur and Marawi City and that on 2 February 1985, they were granted conditional
amnesty b , the said Commission, subject to the approval or final action of the President of the
Philippines pursuant to P.D. No. 1082, dated 2 February 1977. The Amnesty Commission, the peti-
tioners continue, endorsed the amnesty applications of the petitioners to the President, recommend-
ing approval thereof or grant of executive clemency to the petitioners. The petitioners' amnesty ap-
plications are said to have been submitted to the Office of the President by the then Presidential
Assistant Victor Nituda. Former Governor Mohammed Ali Dimaporo, the petitioners further state, made
written representations dated 27 January 1986 with former President Marcos concerning the petition-
ers' applications during a political rally of the Kilusang Bagong Lipunan on 22 January 1986. Mr. Mar-
cos apparently wrote on the upper righthand corner of former Governor Dimaporo's letter the follow-
ing: "Approved" and signed the same with a partly illegible date. The petitioners state, finally, that
the original copies of the amnesty papers were in the possession of then Presidential Adviser Joaquin
Venus and were lost or destroyed at Malacanang "during the February 1986 bloodless military revolu-
tion" and could not now be located.
The respondent Sandiganbayan declined to allow the petitioners to submit secondary evidence of the
claimed applications for and grant of amnesty, upon the ground that even if the petitioners were to
succeed in proving or authenticating the alleged amnesty papers through secondary evidence, peti-
tioners would nonetheless not be entitled to discharge from the convictions rendered by that court.
The respondent court held that the benefits of amnesty were never available to the petitioners under
P.D. No. 1182.
We agree with the Sandiganbayan. P.D. No. 1182 as amended by P.D. No. 1429, dated 10 June
1978, provides, in relevant portion, as follows:
SECTION 1. Proclamation of Amnesty. — Amnesty is hereby decreed in favor of all persons who have
been arrested and/or charged, or although not arrested and/or charged may have committed acts
13
which make them liable for, violation of the provisions of Republic Act No. 1700, as amended by
Presidential Decree No. 885. and those who have been arrested for, and or charged or chargeable
with crimes against public order as defined and penalized under Revised Penal Code, including those
crimes and offenses which may have been committed by said persons in furtherance thereof.
SEC. 2. Persons Disqualified. — The following persons are disqualified from amnesty under this De-
cree:
(a) Those who have promoted, maintained or headed a rebellion or insurrection or who, while holding
public office or employment took part therein, engaged in war against the forces of the Government,
destroyed property or committed serious violence, exacted contributions or diverted public funds from
the lawful purpose for which they had been appropriated; provided, that persons who have been ar-
rested and/or charged with having merely participated or executed the commands of others in a
rebellion may be granted amnesty.
(b) Those who have been arrested and/or charged with murder, homicide, serious physical injuries,
crimes against chastity, robbery, piracy, arson, hijacking, violations of the Firearms and Explosives
Law, and assault upon and resistance and disobedience to persons in authority and their agents,
except if such crime or offense was committed in furtherance of subversion or crimes against public
order as a mere participant/affiliate/member.
x x x           x x x          x x x
SEC. 4. Conditions for the grant of amnesty. — Any person applying for amnesty pursuant to this
Decree must satisfy the following requirements:
a. If under arrest or charged as of the date of this decree, he must submit his application not later
than September 30, 1978 in the prescribed form hereto attached as Annex A;
If not under arrest, he must submit such application within six months after his arrest or surrender;
b. He must renew his oath of allegiance to the Republic of the Philippines and swear or affirm to
support and defend the Constitution of the Philippines; and
c. He must surrender whatever unlicensed firearms and/or explosives and ammunition he may have in
his possession." (Emphasis supplied)
As pointed out by the Sandiganbayan, under the very legislation authorizing the amnesty,
(a) The crimes to be amnestied must have been for violations of subversion laws or those defined
and proscribed under crimes against public order under the Revised Penal Code; and
(b) The applications for amnesty must have been filed not later than September 30, 1978 or six
months after the arrest or surrender of the applicant for amnesty." (Emphasis supplied).
In the instant case, the petitioners were charged with and convicted of defrauding the Republic by
diverting public funds from their intended public uses to private and personal use and gain, under
Article 315 in relation to Article 171 of the Revised Penal Code. Article 315 is found in Title 10,
Chapter 6, of that Code which defines Crimes against Property. The estafa was committed through
the falsification of documents described in Article 171, entitled classification by Public Officer, Em-
ployee or Notary or Ecclessiastical Minister" found in Title 4, entitled Crimes Against Public Interest,
of the Revised Penal Code. Clearly, petitioners fall under Section 2 (a) as persons expressly disquali-
fied from amnesty under P.D. 1182, as amended. Petitioners' applications for amnesty were also filed
way beyond the time limit established under P.D. 1182, as amended, since petitioners were convicted
by the Sandiganbayan on 15 July 1981; their applications for amnesty were filed only in 1984.1aw-
phi1
Petitioners apparently claim that their applications for amnesty were filed under Presidential Decree
No. 1082 dated 2 February 1977 and not under Presidential Decree No. 1182. The photocopied
documents annexed to the Petition (Annexes "C", "D", "E", "F" and "G") captioned: "Subject: Condi-
tional Amnesty" and addressed to some of the petitioners, appear to have been issued under or
pursuant to P.D. No. 1082 "and the instructions of the Secretary of National Defense." P.D. No.
1082 provides in relevant part:
SECTION 1. Proclamation of Amnesty. — Subject to the provisions of Sections 2 and 3 hereof, an
amnesty is hereby decreed and Proclaimed in the province of Tawi-Tawi, Sulu, Basilan, Zamboanga del
Sur, Zamboanga del Norte, Davao del Sur, South Cotabato, North Cotabato, Sultan Kudarat, Maguin-
danao, Lanao del Sur, Lanao del Norte and Palawan; and in the cities of Basilan, Zamboanga Dapitan,
Dipolog, Pagadian, Davao, General Santos, Cotabato, Iligan, Marawi and Puerto Princess, in favor of all
the leaders, members, supporters, and symphatizers of the Moro National Liberation Front and the
Bangsa Moro Army and other anti-government groups with similar motivations and aims, who, prior to
the effectivity of this Decree, have committed any act penalized by existing laws in the furtherance
of their resistance to the duly constituted authorities of the Republic of the Philippines including, but
not limited to:
a. Illegal possession of firearms and ammunition punishable under Section 878 of the Revised Admin-
istrative Code, as amended, or Presidential Decree No. 9, dated October 2, 1972:
b. Illegal possession of bladed weapons or explosives punishable under Presidential Decree No. 9 dated
October 2, 1972;
c. Violation of the Revised Penal Code, as amended, as follows:
(1) Interruption of religious worship(Article l32);
(2) Offending the religious feelings (Article 133);
(3) Rebellion or insurrection (Article 134, in rela tion to Article 135, as amended);
(4) Conspiracy and proposal to commit rebellion (Article 136, as amended)
(5) Inciting to rebelion insurrection(Article l38, as amended):
(6) Sedition (Article 139 in relation to Article 140, as amended);
(7) Conspiracy to commits edition (Article l4l);
(8) Illegal assemblies (Article 146, as amended);
(9) Illegal associations (Article 147, as amended);
(10) Direct assaults (Article 148);
(11) Indirect assaults(Article l49);
(12) Resistance and disobedience to a person in authority or agents of such persons (Article 151);
(13) Tumults and other disturbance of public order (Article 153); and
(14) Alarm and scandals(Article l55);
except those who have committed crimes against chastity, murder, and kidnapping as defined in the
Revised Penal Code as amended; those who have committed violations of Republic Act 6035 (Aircraft
Anti-Hijacking Law) and those who have committed violation of PD 532 dated August 8, 1974 (Anti-
Piracy and Anti-Highway Robbery); provided that any person so excep ted above may be granted
amnesty if recommended and the merits of his case so warrant.
Provided, further, that the persons herein mentioned above who may have committed any of the
above-stated crimes or offenses in furtherance of their resistance to the duly constituted authorities
of the Republic of the Philippines outside of the provinces and cities herein mentioned may also be
granted amnesty by the President in accordance herewith.
14
SEC. 2. Conditions for the grant of amnesty. — Any person applying for amnesty pursuant to this
Decree must satisfy the following requirements and must submit his application within ninety days
from the effectivity of this Decree, to be entitled to the amnesty herein proclaimed:
a. He must take an oath of allegiance to the Republic of the Philippines and swear or affirm to sup-
port and defend the Constitution of the Philippines;
b. He must surrender whatever firearm and/or explosives and ammunition he may have in his posses-
sion. (Emphasis supplied).
We note, at the outset, that P.D. No.1182 may well have repealed P.D. No. 1082. P.D. No. 1182,
the later statute, covers the same subject matter that P.D. No. 1082 covered. P.D. 1182 makes no
mention of the MNLF nor of the Bangsa Moro Army but rather relates to all groups fighting the gov-
ernment of the Republic. P.D. No. 1182, unlike P.D. 1082, covers the entire territory of the Republic
of the Philippines; in contrast, P.D. 1082 covers only some of the provinces in Mindanao and Sulu and
Tawi-Tawi and some of the cities there located. In addition, P.D. 1182 as amended by P.D. No. 1429
included a repealing clause (Section 10, Rescission [sic] Clause] which "rescinded (sic) and/or modi-
fied" all laws, decrees, instructions, rules and regulations inconsistent with that decree. It is, happily,
not necessary to make an explicit determination on this point. We can assume, merely for purposes
of analysis, that P.D. No. 1082 continued to subsist notwithstanding the promulgation of P.D. No.
1182, as amended. P.D. No. 1082 is scarcely a model of legislative draftsmanship. The proviso in the
exception clause immediately following subparagraph No. 14, is particularly opaque. It, however, ap-
pears sufficiently clear that the offenses for which amnesty may be granted under the provisions of
P.D. 1082 are acts penalized under existing law which were done in furtherance or in the course of
resistance to the duly constituted authorities of the Republic by members and supporters of the Moro
National Liberation Front (MNLF) and the Bangsa Moro Army and other "anti-government groups with
similar motivations and aims." The "resistance to the duly constituted authorities of the Republic"
referred to herein is typified by the offenses of rebellion or insurrection or sedition or conspiracy to
commit rebellion or sedition, all offenses with a political character and all of which are embraced in
Title 3 of the Revised Penal Code entitled "Crimes Against Public Order. " In the present case, the
Sandiganbayan said:
Nowhere has it been indicated in the records nor has it been demonstrated now that the insurgents
herein have been convicted of acts constituting crimes against public order or acts committed in
connection with violation of the provisions of R.A. No. 1700 as amended by P.D. No. 885.
We have examined the decision, dated 21 December 1981, by the First Division of the Sandiganbayan
in Criminal Cases Nos. 715, 716, 717, 908, 909 and 910, contained in the record before this Court
in G.R. Nos. 60228-31 entitled Dimalna Limgas and Macalanto Marcaban vs. Sandiganbayan et al."1 We
have also examined the decision dated 2 July 1981 also of the First Division of the Sandiganbayan, in
Criminal Cases Nos. 502 through 531 contained in the record before this Court in G.R. Nos.
58928-57 entitled "Andrada Ditucalan, et al. vs. Sandiganbayan, et al."2 There is nothing in these two
decisions to indicate that the acts with which they were charged and for which the accused were
convicted were committed "in the furtherance of resistance to the duly constituted authorities of the
Republic of the Philippines." On the contrary, the acts of which the accused were convicted were
ordinary crimes (albeit carefully plotted and systematically carried out by numerous accused) without
any political complexion and consisting simply of diversion of public funds to private profit.
The instant case therefore presents the issue of what effect, if any, may be given to supposed acts
of the former President which were in conflict with or in violation of decrees issued by that same
former President. So viewed, this Court has no alternative save to declare that the supposed acts of
the former President done in 1985 in clear conflict with the restrictions embodied in the very decrees
promulgated by that same former President, cannot be given any legal effect. It may be supposed
that the former President could have validly amended Presidential Decrees Nos. 1082 and 1182 so as
to wipe away the restrictions and limitations in fact found in those decrees. But the former President
did not so amend his own decrees and he must be held to the terms and conditions that he himself
had promulgated in the exercise of legislative power.
It may be — we do not completely discount the possibility — that the former President did in fact
act in contravention of the decrees here involved by granting the amnesty claimed by petitioners,
and that by such acts, he may indeed have aroused expectations (however unjustified under the
terms of existing law) in the minds of the petitioners. If such be the case, then the appropriate re-
course of the petitioners is not to this Court, nor to any other court, but rather to the Executive
Department of the government.
WHEREFORE, the Petition is DENIED. The Resolution dated 27 January 1987 of the respondent Sandi-
ganbayan is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial
Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents.
KAPUNAN, J.:
The sole issue in the case at bench involves a question of law. After finding that an accused individ-
ual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any
discretion in imposing either the penalty of Reclusion Perpetua or Death?
The facts antecedent to the case before this Court, as narrated by petitioner,1 involve the perpetra-
tion of acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:
On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack
and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was
seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light
colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left
ear, lacerations on her genitalia, and with her head bashed in.
On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy
report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape
with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila,
National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071, reads:
That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO" and other persons whose true names, identifies and
present whereabouts are still unknown and helping one another, with treachery, taking advantage of
15
their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is,
by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina,
hitting her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlaw-
fully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a mi-
nor, seven (7) years of age, against the latter's will and consent and on said occasion the said
ABUNDIO LAGUNDAY, a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause
of her death immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St., Tondo,
Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila, Richard
Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y
Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape
with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138,
allegedly committed as follows:
That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused
conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO y
PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense
under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of
their superior strength and nocturnity and ignominy, and with the use of force and violence, that is,
by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a
nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of
wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowl-
edge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the
latter's will and consent and on said occasion the said accused together with their confederates
ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death
immediately thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided
over by respondent Judge.
Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.
After trial and presentation of the evidence of the prosecution and the defense, the trial court ren-
dered a decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto
Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sen-
tenced both accused with the "penalty of reclusion perpetua with all the accessories provided for by
law."3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995,
filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death
be imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion per-
petua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on
February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion
reads:
The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied
with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this
Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both here-
in accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit the complete records of these cases, together
with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of
the Revised Rules of Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's
determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time
on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to
the instant case relevant to the determination of the legal question at hand, i.e., whether or not the
respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed
and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding
the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise
of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they
are required by law to exercise the duties of their office, then law becomes meaningless. A govern-
ment of laws, not of men excludes the exercise of broad discretionary powers by those acting under
its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect and
enforce it without fear or favor,"4 resist encroachments by governments, political parties,5 or even
the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the evidence of the prosecution and the de-
fendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homi-
cide. Since the law in force at the time of the commission of the crime for which respondent judge
found the accused guilty was Republic Act No. 7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby amended to read as follows:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more per-
sons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.
16
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
. . .6
Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of
Reclusion Perpetua, it allows judges the discretion — depending on the existence of circumstances
modifying the offense committed — to impose the penalty of either Reclusion Perpetua only in the
three instances mentioned therein. Rape with homicide is not one of these three instances. The law
plainly and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is
committed, the penalty shall be death." The provision leaves no room for the exercise of discretion
on the part of the trial judge to impose a penalty under the circumstances described, other than a
sentence of death.
We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize
that a court of law is no place for a protracted debate on the morality or propriety of the sentence,
where the law itself provides for the sentence of death as a penalty in specific and well-defined in-
stances. The discomfort faced by those forced by law to impose the death penalty is an ancient one,
but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom,
efficacy or morality of laws. In People vs. Limaco 7 we held that:
[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in
arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality
and reversible error, then we are constrained to state our opinion, not only to correct the error but
for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman
or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people
who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. How-
ever, as long as that penalty remains in the statute books, and as long as our criminal law provides
for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law re-
gardless of their private opinions. It is a well settled rule that the courts are not concerned with the
wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legisla-
ture which enacts them and the Chief Executive who approves or vetoes them. The only function of
the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them.
And for the guidance of the members of the judiciary we feel it incumbent upon us to state that
while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and
may recommend to the authority or department concerned, its amendment, modification, or repeal,
still, as long as said law is in force, they must apply it and give it effect as decreed by the law-mak-
ing body.8
Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the
proper penalty and civil liability provided for by the law on the accused."9 This is not a case of a
magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate provi-
sions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent judge
acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a lack of
jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the penalty
of Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED
to the Regional Trial Court for the imposition of the penalty of death upon private respondents in
consonance with respondent judge's finding that the private respondents in the instant case had
committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amend-
ed by Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the deci-
sion imposing the death penalty.
SO ORDERED.
Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ., concur.
Separate Opinions
NARVASA, C.J., concurring:
I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw
up this separate opinion merely to address a question which may be raised in relation to the appeal
taken by the accused from the judgment of conviction rendered by respondent Judge. It will be re-
called that respondent Judge declined to act on the merits of motion for reconsideration filed by the
prosecution — praying that his decision sentencing both accused to suffer reclusion perpetua be
"modified in that the penalty of death be imposed" — for the reason that since the accused had
already "complied with the legal requirements for the perfection of an appeal," the Trial Court had
lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this
Court of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the
court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This
proposition considered, and following respondent Judge's reasoning, this Court's directive for the
remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon pri-
vate respondents," might appear to be open to question, since it would require the Trial Court to act
in cases over which it had lost jurisdiction. Such a conclusion is not warranted.
The judgment in question is void, and has been annulled and set aside by this Court, because ren-
dered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond reason-
able doubt, a penalty other than that peremptorily prescribed by law. The judgment being void, the
appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be deemed to have
thereby lost jurisdiction of the cases. It cannot thus be said that it is being required by this Court to
act in cases over which it has already lost jurisdiction. There exists no legal obstacle to the remand
of the cases to it and its modification of the judgment so that it may comply with the mandatory
prescription of the law.
REGALADO, J., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo im-
pose the correct penalty of death as provided by law and consequent to its findings of guilt on the
part of private respondents. Indeed, this separate opinion which explicates my conformity with the
procedure adopted and the mandate thereof would not have been necessary were it not for the con-
trary observations that the petition herein should either have been dismissed or consolidated with the
criminal case elevated on appeal by private respondents.
17
Such digression from the judgment unconditionally accepted by the other members of the Court does
not impress me as being concordant with the Rules of Court and decisional law. What is before us in
the case at bar is an original civil action invoking the extraordinary writ of certiorari for the imposition
of the correct penalty specified by law, which legal duty respondent judge refused to comply with in
grave abuse of his judicial discretion.1 On the other hand, the criminal case with which it is sought to
be consolidated is an appellate recourse wherein the relief sought is primarily the reversal of the
finding of guilt and the absolution of private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil
action are entirely different from the issues for resolution and the modificatory judgment desired in
the appealed criminal case. The basic rule in consolidation of cases in civil procedure2 requires, among
others, the same subject matter and the existence of a common question of law or fact. This is
essentially the same as the rule on consolidation in criminal procedure3 which contemplates charges
for offenses founded on the same facts, or forming part of a series of offenses of similar character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal
actions, and not a special civil action in combination with the former. The impropriety of the latter
situation is specially underscored where the resolution of the controversy in the special civil action is
a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial courts
in the exercise of original jurisdiction and to the appellate courts in the implementation of revisory
power.
The purpose of the present original action for certiorari is to have the erroneous judgment of respon-
dent judge — erroneous because he imposed the wrong penalty — corrected on that score in the
first instance. After such correction shall have been effected, then the appeal from his judgment shall
proceed for the desired review by this Court to determine the guilt or innocence of appellants. The
corrective action must proceed first and the resultant amended judgment containing the proper
penalty shall be the basis for the review as to whether appellants are truly guilty and have to be
meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification
with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity
of both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate
review be conducted with the judgment containing an unauthorized penalty as the basis therefor, with
this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an
appeal throws the judgment a quo open for review and the Court may raise the penalty to the ap-
propriate punitive level. But, as the People pertinently observes, what is there to prevent appellants
from withdrawing their appeal upon sensing from the arguments that, instead of the acquittal or
reduced penalty aspired for, the ultimate denouement would be the death sentence?
Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his
appeal in the appellate court.4 Generally, the withdrawal of an appeal before the filing of the ap-
pellee's brief in this Court is permitted.5 Assuming that the Court denies the withdrawal of the appeal
in order that the mistake in the penalty imposed may be corrected in the judgment of the case on
the merits,6 why should the appellate course of the proceedings still have to be subject to such con-
tingencies — with the inevitable waste of time and effort in the formulation of alternative theories in
two sets of pleadings by both parties — when with the decisive sweep of the adjudgment here the
doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error
from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in
the penalty is now rectified with the death sentence being substituted therefor, as undeniably it
should be, then the case will consequently be before this Court on automatic review. That provision
calling for automatic review when capital punishment is inflicted7 serves equally the interests of both
the defense and the prosecution through protective features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of
death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless
proceed, albeit without the benefit of briefs or arguments from the accused.8 The automatic review
of the case shall proceed even if the death convict shall escape,9 as an exception to the provisions
of Section 8, Rule 124, and such automatic review cannot be waived. 10 The aforementioned benefi-
cial effects are not provided for and may not be availed of by the accused in an ordinary appeal to
this Court.
The automatic review of the death sentence ensures the right of the condemned person to pro-
cedural due process on appeal, and safeguards the interests of the State by exacting the correspond-
ing penal sanction decreed by law. The disposition adopted by the Court in this case subserves the
ends of these fundamental policies, hence my unqualified assent thereto.
VITUG, J., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal before
this Court. Thus, the instant petition, in my view, has become academic since an appeal brings the
case wide open for review and consideration. A ruling on the petition would be precipitate and might
be so perceived as peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition,
it should at the very least be consolidated with the appealed case.
Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs.
Separate Opinions
NARVASA, C.J., concurring:
I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw
up this separate opinion merely to address a question which may be raised in relation to the appeal
taken by the accused from the judgment of conviction rendered by respondent Judge. It will be re-
called that respondent Judge declined to act on the merits of motion for reconsideration filed by the
prosecution — praying that his decision sentencing both accused to suffer reclusion perpetua be
"modified in that the penalty of death be imposed" — for the reason that since the accused had
already "complied with the legal requirements for the perfection of an appeal," the Trial Court had
lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this
Court of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the
court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This
proposition considered, and following respondent Judge's reasoning, this Court's directive for the
remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon pri-
vate respondents," might appear to be open to question, since it would require the Trial Court to act
in cases over which it had lost jurisdiction. Such a conclusion is not warranted.
18
The judgment in question is void, and has been annulled and set aside by this Court, because ren-
dered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond reason-
able doubt, a penalty other than that peremptorily prescribed by law. The judgment being void, the
appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be deemed to have
thereby lost jurisdiction of the cases. It cannot thus be said that it is being required by this Court to
act in cases over which it has already lost jurisdiction. There exists no legal obstacle to the remand
of the cases to it and its modification of the judgment so that it may comply with the mandatory
prescription of the law.
REGALADO, J., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo im-
pose the correct penalty of death as provided by law and consequent to its findings of guilt on the
part of private respondents. Indeed, this separate opinion which explicates my conformity with the
procedure adopted and the mandate thereof would not have been necessary were it not for the con-
trary observations that the petition herein should either have been dismissed or consolidated with the
criminal case elevated on appeal by private respondents.
Such digression from the judgment unconditionally accepted by the other members of the Court does
not impress me as being concordant with the Rules of Court and decisional law. What is before us in
the case at bar is an original civil action invoking the extraordinary writ of certiorari for the imposition
of the correct penalty specified by law, which legal duty respondent judge refused to comply with in
grave abuse of his judicial discretion.1 On the other hand, the criminal case with which it is sought to
be consolidated is an appellate recourse wherein the relief sought is primarily the reversal of the
finding of guilt and the absolution of private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil
action are entirely different from the issues for resolution and the modificatory judgment desired in
the appealed criminal case. The basic rule in consolidation of cases in civil procedure2 requires, among
others, the same subject matter and the existence of a common question of law or fact. This is
essentially the same as the rule on consolidation in criminal procedure3 which contemplates charges
for offenses founded on the same facts, or forming part of a series of offenses of similar character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal
actions, and not a special civil action in combination with the former. The impropriety of the latter
situation is specially underscored where the resolution of the controversy in the special civil action is
a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial courts
in the exercise of original jurisdiction and to the appellate courts in the implementation of revisory
power.
The purpose of the present original action for certiorari is to have the erroneous judgment of respon-
dent judge — erroneous because he imposed the wrong penalty — corrected on that score in the
first instance. After such correction shall have been effected, then the appeal from his judgment shall
proceed for the desired review by this Court to determine the guilt or innocence of appellants. The
corrective action must proceed first and the resultant amended judgment containing the proper
penalty shall be the basis for the review as to whether appellants are truly guilty and have to be
meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification
with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity
of both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate
review be conducted with the judgment containing an unauthorized penalty as the basis therefor, with
this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse. True, an
appeal throws the judgment a quo open for review and the Court may raise the penalty to the ap-
propriate punitive level. But, as the People pertinently observes, what is there to prevent appellants
from withdrawing their appeal upon sensing from the arguments that, instead of the acquittal or
reduced penalty aspired for, the ultimate denouement would be the death sentence?
Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his
appeal in the appellate court.4 Generally, the withdrawal of an appeal before the filing of the ap-
pellee's brief in this Court is permitted.5 Assuming that the Court denies the withdrawal of the appeal
in order that the mistake in the penalty imposed may be corrected in the judgment of the case on
the merits,6 why should the appellate course of the proceedings still have to be subject to such con-
tingencies — with the inevitable waste of time and effort in the formulation of alternative theories in
two sets of pleadings by both parties — when with the decisive sweep of the adjudgment here the
doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error
from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in
the penalty is now rectified with the death sentence being substituted therefor, as undeniably it
should be, then the case will consequently be before this Court on automatic review. That provision
calling for automatic review when capital punishment is inflicted7 serves equally the interests of both
the defense and the prosecution through protective features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of
death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless
proceed, albeit without the benefit of briefs or arguments from the accused.8 The automatic review
of the case shall proceed even if the death convict shall escape,9 as an exception to the provisions
of Section 8, Rule 124, and such automatic review cannot be waived. 10 The aforementioned benefi-
cial effects are not provided for and may not be availed of by the accused in an ordinary appeal to
this Court.
The automatic review of the death sentence ensures the right of the condemned person to pro-
cedural due process on appeal, and safeguards the interests of the State by exacting the correspond-
ing penal sanction decreed by law. The disposition adopted by the Court in this case subserves the
ends of these fundamental policies, hence my unqualified assent thereto.
VITUG, J., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal before
this Court. Thus, the instant petition, in my view, has become academic since an appeal brings the
case wide open for review and consideration. A ruling on the petition would be precipitate and might
be so perceived as peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition,
it should at the very least be consolidated with the appealed case.
Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs
19
G.R. No. 173034             October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and AS-
SISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,
respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is moth-
er's milk. There is nothing greater than for a mother to nurture her beloved child straight from her
bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of
breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not
valid as it contains provisions that are not constitutional and go beyond the law it is supposed to
implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said execu-
tive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by
virtue of the legislative powers granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take appropriate measures to diminish infant and
child mortality, and ensure that all segments of society, specially parents and children, are informed
of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breast-
milk 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 im-
plementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19,
2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations
(RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of
the land and may be implemented by the DOH through the RIRR; If in the affirmative, whether the
RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and
are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002 Global
Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly (WHA) Resolu-
tions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest,
the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to its members. This view
fuses the legal identity of an association with that of its members. An association has standing to file
suit for its workers despite its lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as
the representative of any individual, company, entity or association on matters related to the man-
power recruitment industry, and to perform other acts and activities necessary to accomplish the
purposes embodied therein. The respondent is, thus, the appropriate party to assert the rights of its
members, because it and its members are in every practical sense identical. x x x The respondent
[association] is but the medium through which its individual members seek to make more effective
the expression of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that
an association has the legal personality to represent its members because the results of the case will
affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed "to represent directly or through approved representatives
the pharmaceutical and health care industry before the Philippine Government and any of its agencies,
the medical professions and the general public."8 Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical
and health care industry. Petitioner is duly authorized9 to take the appropriate course of action to
20
bring to the attention of government agencies and the courts any grievance suffered by its members
which are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on gov-
ernmental 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 consid-
ered 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 amend-
ing and expanding the coverage of said law. The defense of the DOH is that the RIRR implements not
only the Milk Code but also various international instruments10 regarding infant and young child nutri-
tion. It is respondents' position that said international instruments are deemed part of the law of the
land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health
and well-being of families, and ensure that women are provided with services and nutrition in connec-
tion 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 transformation or incorporation.11 The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section
21 of the Constitution which provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate." Thus, treaties
or conventional international law must go through a process prescribed by the Constitution for it to
be transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-
thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitu-
tion.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic
law through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and
effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this
point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or
other forms of promotion to the general public of products within the scope of the ICMBS. Instead,
the Milk Code expressly provides that advertising, promotion, or other marketing materials may be
allowed if such materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Con-
stitution, form part of the laws of the land even if they do not derive from treaty obligations. The
classical formulation in international law sees those customary rules accepted as binding result from
the combination [of] two elements: the established, widespread, and consistent practice on the part
of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in question is rendered oblig-
atory by the existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary in-
ternational 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 munici-
pal law principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris]." (Restatement) This statement contains the two
basic elements of custom: the material factor, that is, how states behave, and the psychological 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 in-
cludes 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 oblig-
21
atory 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, prac-
tice is not law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under
the 1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the
power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and simi-
lar products moving in international commerce,"27 and to "make recommendations to members with
respect to any matter within the competence of the Organization."28 The legal effect of its regula-
tions, 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 re-
spect to any matter within the competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or agreements, which shall come
into force for each Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the
Health Assembly of a convention or agreement, take action relative to the acceptance of such con-
vention 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 dis-
ease; (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 in-
ternational commerce; (e) advertising and labeling of biological, pharmaceutical and similar products
moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after
due notice has been given of their adoption by the Health Assembly except for such Members as
may notify the Director-General of rejection or reservations within the period stated in the notice.
(Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for mem-
bers, in the same way that conventions or agreements under Article 19 and regulations under Article
21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with
respect to any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are gen-
erally 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 Constitu-
tion, the International Code of Marketing of Breastmilk Substitutes annexed to the present resolution."
(Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-
fourth World Health Assembly the text of a resolution by which it would adopt the code in the form
of a recommendation rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations
made to it by the Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member
states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what
has been done with the ICMBS whereby the legislature enacted most of the provisions into law which
is the Milk Code, the subsequent WHA Resolutions,30 specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting advertise-
ments 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, Chap-
ter III of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of
non-binding norms, principles, and practices that influence state behavior.33 Certain declarations and
resolutions of the UN General Assembly fall under this category.34 The most notable is the UN Decla-
ration 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 In-
ternational Labor Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO member states, it
provides an excellent example of the power of "soft law" in international relations. International
lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms, prin-
22
ciples, and practices that influence state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork
for improved international cooperation on infectious diseases. These resolutions clearly define WHO
member states' normative duty to cooperate fully with other countries and with WHO in connection
with infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is pow-
erful 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 devel-
opment of general and consistent state practice on infectious disease surveillance and outbreak re-
sponse, perhaps crystallizing eventually into customary international law on infectious disease preven-
tion and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to
address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26,
2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to
close down schools/establishments, conduct health surveillance and monitoring, and ban importation
of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to im-
plement 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 es-
tablished 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 in-
ternational 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 domes-
tic 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 Resolu-
tions by virtue of its powers and functions under the Revised Administrative Code even in the ab-
sence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the framework of
the government's general policies and plans, and issue orders and regulations concerning the imple-
mentation 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 breast-
feeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate
complementary feeding, which is to start at age six months; (3) micronutrient supplementation; (4)
universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally
difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized as a national
health policy. However, nowhere in A.O. No. 2005-0014 is it declared that as part of such health
policy, the advertisement or promotion of breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those
of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the follow-
ing:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage
to "young children" or those from ages two years old and beyond:
MILK CODE
RIRR
WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need
to protect and promote breastfeeding and to inform the public about the proper use of breastmilk
substitutes and supplements and related products through adequate, consistent and objective infor-
mation and appropriate regulation of the marketing and distribution of the said substitutes, supple-
ments and related products;
SECTION 4(e). "Infant" means a person falling within the age bracket of 0-12 months.
Section 2. Purpose – These Revised Rules and Regulations are hereby promulgated to ensure the
provision of safe and adequate nutrition for infants and young children by the promotion, protection
and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk
supplements and related products when these are medically indicated and only when necessary, on
the basis of adequate information and through appropriate marketing and distribution.
Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to
the age of three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breast-
milk in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months"
and declares that "there is no substitute nor replacement for breastmilk":
MILK CODE
RIRR
WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need
to protect and promote breastfeeding and to inform the public about the proper use of breastmilk
23
substitutes and supplements and related products through adequate, consistent and objective infor-
mation and appropriate regulation of the marketing and distribution of the said substitutes, supple-
ments and related products;
Section 4. Declaration of Principles – The following are the underlying principles from which the re-
vised rules and regulations are premised upon:
a. Exclusive breastfeeding is for infants from 0 to six (6) months.
b. There is no substitute or replacement for breastmilk.
3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and
promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for
infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section
13 of the RIRR, which provides for a "total effect" in the promotion of products within the scope of
the Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for prod-
ucts 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.
Section 4. Declaration of Principles – The following are the underlying principles from which the re-
vised rules and regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-ships of infant formula, breastmilk substitutes and other related
products are prohibited.
Section 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and activi-
ties for breastmilk substitutes intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give subliminal messages or impressions
that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope of this Code.
Section 13. "Total Effect" - Promotion of products within the scope of this Code must be objective
and should not equate or make the product appear to be as good or equal to breastmilk or breast-
feeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding.
The "total effect" should not directly or indirectly suggest that buying their product would produce
better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring
better health to the baby or other such exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following shall not be included in advertising, promotional and
marketing materials:
a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or
superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements.
In this connection, no pictures of babies and children together with their mothers, fathers, siblings,
grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant
formula and breastmilk supplements;
b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing
breastmilk substitutes or milk supplements;
c. Pictures or texts that idealize the use of infant and milk formula.
Section 16. All health and nutrition claims for products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
RIRR
SECTION 10. Containers/Label. –
(a) Containers and/or labels shall be designed to provide the necessary information about the appro-
priate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from
it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need
for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.
Section 26. Content – Each container/label shall contain such message, in both Filipino and English
languages, and which message cannot be readily separated therefrom, relative the following points:
(a) The words or phrase "Important Notice" or "Government Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for breastmilk;
(d) A statement that the product shall be used only on the advice of a health worker as to the need
for its use and the proper methods of use;
(e) Instructions for appropriate prepara-tion, and a warning against the health hazards of inappropri-
ate preparation; and
(f) The health hazards of unnecessary or improper use of infant formula and other related products
including information that powdered infant formula may contain pathogenic microorganisms and must
be prepared and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health professionals; the
RIRR totally prohibits such activity:
MILK CODE
RIRR
SECTION 7. Health Care System. –
(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 dissemina-
tion of information to health professionals as provided in Section 8(b).
SECTION 8. Health Workers. -
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters and such informa-
tion 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).
24
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 produc-
tion of Information, Education and Communication (IEC) materials on breastfeeding, holding of or
participating as speakers in classes or seminars for women and children activities and to avoid the
use of these venues to market their brands or company names.
SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely
prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not be allowed.
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and
continuing education of health professionals; RIRR absolutely forbids the same.
MILK CODE
RIRR
SECTION 8. Health Workers –
(e) Manufacturers and distributors of products within the scope of this Code may assist in the re-
search, scholarships and continuing education, of health professionals, in accordance with the rules
and regulations promulgated by the Ministry of Health.
Section 4. Declaration of Principles –
The following are the underlying principles from which the revised rules and regulations are premised
upon:
i. Milk companies, and their representatives, should not form part of any policymaking body or entity
in relation to the advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall
be allowed to conduct or be involved in any activity on breastfeeding promotion, education and pro-
duction of Information, Education and Communication (IEC) materials on breastfeeding, holding of or
participating as speakers in classes or seminars for women and children activities and to avoid the
use of these venues to market their brands or company names.
SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health
workers to promote, protect and support breastfeeding and appropriate infant and young child feed-
ing. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding.
No assistance, support, logistics or training from milk companies shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
RIRR
SECTION 6. The General Public and Mothers. –
(f) Nothing herein contained shall prevent donations from manufacturers and distributors of products
within the scope of this Code upon request by or with the approval of the Ministry of Health.
Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and
covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not Covered by this Code. - Donations of products,
equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by
milk companies and their agents, representatives, whether in kind or in cash, may only be coursed
through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted
or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
RIRR
 
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 implement-
ing Rules and Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the
offending product;
c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred
Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in
addition thereto, the recall of the offending product, and suspension of the Certificate of Product
Registration (CPR);
d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Oper-
ate (LTO) for one year;
e) 5th and succeeding repeated violations – Administrative Fine of One Million (P1,000,000.00) Pesos,
the recall of the offending product, cancellation of the CPR, revocation of the License to Operate
(LTO) of the company concerned, including the blacklisting of the company to be furnished the De-
partment of Budget and Management (DBM) and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for
every day the violation continues after having received the order from the IAC or other such appro-
priate body, notifying and penalizing the company for the infraction.
For purposes of determining whether or not there is "repeated" violation, each product violation be-
longing or owned by a company, including those of their subsidiaries, are deemed to be violations of
the concerned milk company and shall not be based on the specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and practices related thereto, of
the following products: breastmilk substitutes, including infant formula; other milk products, foods and
beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information concerning their
use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food,
and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to
their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to
25
"any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or in-
fant 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 nour-
ishment of this group of infants or children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food
being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or
not suitable for that purpose." This section conspicuously lacks reference to any particular age-group
of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-
12 months. In other words, breastmilk substitutes may also be intended for young children more than
12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to
protect and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be
used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the RIRR
also states that information and educational materials should include information on the proper use of
infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk
substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked
with each other.
To resolve the question of whether the labeling requirements and advertising regulations under the
RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory
powers of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in
particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that mat-
ter precludes the need to further discuss it..48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively
new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was
already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof
charged it with the duty to protect the health of the people, and vested it with such powers as "(g)
the dissemination of hygienic information among the people and especially the inculcation of knowl-
edge as to the proper care of infants and the methods of preventing and combating dangerous
communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To that
end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health
information and educate the population on important health, medical and environmental matters which
have health implications."53
When it comes to information regarding nutrition of infants and young children, however, the Milk
Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to
ensure that there is adequate, consistent and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products; and the power to control such information.
These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of
the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers
and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation of
this Code and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the at-
tainment 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 feed-
ing, for use by families and those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk
vis-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 informa-
tion on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutri-
tion, 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 breast-
feed; and (5) where needed, the proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of infant for-
mula and other breastmilk substitutes. Such materials shall not use any picture or text which may
idealize the use of breastmilk substitutes.
SECTION 8. Health Workers –
26
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 informa-
tion shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information about the appro-
priate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information
that would reach pregnant women, mothers of infants, and health professionals and workers in the
health care system is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information regard-
ing breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not en-
compass the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by
the Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution of
breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute to the provision of safe and
adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and practices related
to breastmilk substitutes, including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent infor-
mation is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational materials
shall not use any picture or text which may idealize the use of breastmilk substitutes and should
include information on the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and ex-
amine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health professionals but
such information should be restricted to factual and scientific matters and shall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that would
discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling
and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there
be a statement that powdered infant formula may contain pathogenic microorganisms and must be
prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased emotional and intellectual
abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code,
to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such informa-
tion shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized," "mater-
nalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive appli-
cation 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 mes-
sage. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to
avoid by mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consis-
tent, at the same time giving the government control over planning, provision, design, and dissemina-
tion of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product of-
fered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk
Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in
Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b)
of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear informa-
tion 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
27
improper use of infant formula and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof. The
buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a
fair warning about the likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.
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.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of adver-
tising, 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 prod-
ucts within the scope of this Code shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to
an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
members is hereby created:
Minister of Health
-------------------
Chairman
Minister of Trade and Industry
-------------------
Member
Minister of Justice
-------------------
Member
Minister of Social Services and Development
-------------------
Member
The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials, whether written,
audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publica-
tion, distribution, exhibition and broadcast of, all advertising promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions
as well as the performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the implementation of
Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing materials and activi-
ties 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 relat-
ed 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 dis-
semination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted,
during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually
operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is
an absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what
AO 2006-12 provides is not an absolute prohibition because Section 11 while it states and it is enti-
tled prohibition it states that no advertising, promotion, sponsorship or marketing materials and activ-
ities 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 advertis-
ing 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
28
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the
Inter-Agency Committee that processes and evaluates because there may be some information dis-
semination that are straight forward information dissemination. What the AO 2006 is trying to pre-
vent is any material that will undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules
and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority when it
totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as
the content of materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the
Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of
breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substi-
tutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate
some advertising and promotional materials, subject to the standards that we have stated earlier,
which are- they should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee
has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute
regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions
and standards have been set. One of which is that, the Inter-Agency Committee can allow if the
advertising and promotions will not undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the ap-
proval 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 repe-
titious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear informa-
tion on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal nutri-
tion, 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 breast-
feed; 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 for-
mula 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 informa-
tion 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 appro-
priate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable message in
Pilipino or English printed on it, or on a label, which message can not readily become separated from
it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need
for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of inappropriate
preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a)
of the Milk Code states that:
SECTION 5. Information and Education –
29
(a) The government shall ensure that objective and consistent information is provided on infant feed-
ing, 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, promotion-
al, 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 breast-
feeding in the advertising concept. It must not in any case undermine breastmilk or breastfeeding.
The "total effect" should not directly or indirectly suggest that buying their product would produce
better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring
better health to the baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, sup-
plements and other related products. It also sets a viable standard against which the IAC may screen
such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest,"
"justice and equity," "public convenience and welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest and
welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also
finds that there is no inconsistency between the provisions of the Milk Code and the RIRR. Section
7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows dissemination of
information to health professionals but 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 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 en-
compass 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 dis-
tributors to extend assistance in research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69
of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in
relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form part
of any policymaking body or entity in relation to the advancement of breastfeeding. The Court finds
nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk
Code, it is the DOH which shall be principally responsible for the implementation and enforcement of
the provisions of said Code. It is entirely up to the DOH to decide which entities to call upon or allow
to be part of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition on milk compa-
nies’ participation in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does
not pertain to research assistance to or the continuing education of health professionals; rather, it
deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of
the RIRR prohibits milk companies from giving assistance for research or continuing education to
health professionals; hence, petitioner's argument against this particular provision must be struck
down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR
provide that research assistance for health workers and researchers may be allowed upon approval of
an ethics committee, and with certain disclosure requirements imposed on the milk company and on
the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational as-
sistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the
DOH under Section 8(e)74 of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now
DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distribu-
tors 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 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 deter-
mine whether such donation should be accepted or refused. As reasoned out by respondents, the
DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can
be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the
law because the Milk Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in
the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The glaring
difference in said case and the present case before the Court is that, in the Civil Aeronautics Board,
the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the pow-
30
er 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 up-
held the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld
the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg.
33. The circular provided for fines for the commission of prohibited acts. The Court found that noth-
ing 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 provi-
sion 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 per-
tinent laws on products covered by this Code." Section 13 of the Milk Code provides for the penal-
ties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant
to this Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year
imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more than Thirty Thou-
sand Pesos (P30,000.00) or both. Should the offense be committed by a juridical person, the chair-
man of the Board of Directors, the president, general manager, or the partners and/or the persons
directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health worker, distribu-
tor, 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 sus-
pended or revoked in the event of repeated violations of this Code, or of the rules and regulations
issued pursuant to this Code. (Emphasis supplied)
8. 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 in-
consistent 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 pow-
er 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 separa-
bility of powers.78 Such express grant of rule-making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating
and adjusting the details and manner by which they are to implement the provisions of a law,80 in
order to make it more responsive to the times. Hence, it is a standard provision in administrative
rules that prior issuances of administrative agencies that are inconsistent therewith are declared re-
pealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate
and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the
RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and op-
pressive, and is offensive to the due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to provide the public with a compre-
hensible basis to determine whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provi-
sions that suppress the trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of regu-
lation for the public good. Public interest must be upheld over business interests.90 In Pest Manage-
ment 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 Au-
thority, despite the fact that "our present Constitution enshrines free enterprise as a policy, it none-
theless reserves to the government the power to intervene whenever necessary to promote the gen-
eral 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 enter-
prise 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 re-
straint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers’ participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the
giving of assistance, support and logistics or training (Section 32); and the giving of donations (Sec-
tion 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not estab-
lished that the proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner
failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive
for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppres-
sive. 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 en-
gaged 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, repre-
sentative, national distributor or broker.
xxxx
31
(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 enti-
ties defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR also enu-
merated 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 dis-
tributors, the Court sees no harm in the RIRR providing for just one term to encompass both entities.
The definition of "milk company" in the RIRR and the definitions of "distributor" and "manufacturer"
provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would bring
about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk
substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which
affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint
of trade nor are they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order
No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Depart-
ment 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.
G.R. No. 162224              June 7, 2007
2nd LT. SALVADOR PARREÑO represented by his daughter Myrna P. Caintic, petitioner,
vs.
COMMISSION ON AUDIT and CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 9 January 2003 Decision2 and 13 January
2004 Resolution3 of the Commission on Audit (COA).
The Antecedent Facts
Salvador Parreño (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years. On 5
January 1982, petitioner retired from the Philippine Constabulary with the rank of 2nd Lieutenant.
Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay. In
1985, petitioner started receiving his monthly pension amounting to ₱13,680.
Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP
stopped petitioner’s monthly pension in accordance with Section 27 of Presidential Decree No. 16384
(PD 1638), as amended by Presidential Decree No. 1650.5 Section 27 of PD 1638, as amended,
provides that a retiree who loses his Filipino citizenship shall be removed from the retired list and his
retirement benefits terminated upon loss of Filipino citizenship. Petitioner requested for reconsidera-
tion but the Judge Advocate General of the AFP denied the request.
Petitioner filed a claim before the COA for the continuance of his monthly pension.
The Ruling of the Commission on Audit
In its 9 January 2003 Decision, the COA denied petitioner’s claim for lack of jurisdiction. The COA
ruled:
It becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of
Section 27 of P.D. No. 1638, as amended. Pursuant to the mandate of the Constitution, whenever a
dispute involves the validity of laws, "the courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the limit imposed by
the fundamental law. Where the statute violates the Constitution, it is not only the right but the
duty of the judiciary to declare such act as unconstitutional and void." (Tatad vs. Secretary of De-
partment of Energy, 281 SCRA 330) That being so, prudence dictates that this Commission defer to
the authority and jurisdiction of the judiciary to rule in the first instance upon the constitutionality of
the provision in question.
Premises considered, the request is denied for lack of jurisdiction to adjudicate the same. Claimant is
advised to file his claim with the proper court of original jurisdiction.6
Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and au-
thority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended. Petitioner
alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative
remedies. Petitioner further alleged that since his monthly pension involves government funds, the
reason for the termination of the pension is subject to COA’s authority and jurisdiction.
In its 13 January 2004 Resolution, the COA denied the motion. The COA ruled that the doctrine of
exhaustion of administrative remedies does not apply if the administrative body has, in the first place,
no jurisdiction over the case. The COA further ruled that even if it assumed jurisdiction over the
claim, petitioner’s entitlement to the retirement benefits he was previously receiving must necessarily
cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amend-
ed.
Hence, the petition before this Court.
The Issues
Petitioner raises the following issues:
1. Whether Section 27 of PD 1638, as amended, is constitutional;
2. Whether the COA has jurisdiction to rule on the constitutionality of Section 27 of PD 1638, as
amended; and
3. Whether PD 1638, as amended, has retroactive or prospective effect.7
The Ruling of this Court
The petition has no merit.
Jurisdiction of the COA
Petitioner filed his money claim before the COA. A money claim is "a demand for payment of a sum
of money, reimbursement or compensation arising from law or contract due from or owing to a gov-
ernment agency."8 Under Commonwealth Act No. 327,9 as amended by Presidential Decree No.
1445,10 money claims against the government shall be filed before the COA.11
32

Section 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows:
Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled corporations with original
charters, and on a post-audit basis; (a) constitutional bodies, commissions and offices that have been
granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c)
other government-owned or controlled corporations and their subsidiaries; and (d) such non-govern-
mental entities receiving subsidy or equity, directly or indirectly, from or through the Government,
which are required by law or the granting institution to submit such audit as a condition of subsidy or
equity. However, where the internal control system of the audited agencies is inadequate, the Com-
mission may adopt such measures, including temporary or special pre-audit, as are necessary and
appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for
such period as may be provided by law, preserve the vouchers and other supporting papers pertaining
thereto.
The jurisdiction of the COA over money claims against the government does not include the power to
rule on the constitutionality or validity of laws. The 1987 Constitution vests the power of judicial
review or the power to declare unconstitutional a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial
Courts.12 Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD 1638,
as amended. Hence, the COA did not commit grave abuse of discretion in dismissing petitioner’s
money claim.
Petitioner submits that the COA has the authority to order the restoration of his pension even with-
out ruling on the constitutionality of Section 27 of PD 1638, as amended. The COA actually ruled on
the matter in its 13 January 2004 Resolution, thus:
Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case,
claimant’s entitlement to the retirement benefits he was previously receiving must necessarily be
severed or stopped upon the loss of his Filipino citizenship as prescribed in Section 27, P.D. No.
1638, as amended by P.D. No. 1650.13
The COA effectively denied petitioner’s claim because of the loss of his Filipino citizenship.
Application of PD 1638, as amended
Petitioner alleges that PD 1638, as amended, should apply prospectively. The Office of the Solicitor
General (OSG) agrees with petitioner. The OSG argues that PD 1638, as amended, should apply only
to those who joined the military service after its effectivity, citing Sections 33 and 35, thus:
Section 33. Nothing in this Decree shall be construed in any manner to reduce whatever retirement
and separation pay or gratuity or other monetary benefits which any person is heretofore receiving or
is entitled to receive under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to the provisions of this Decree and to preserve
the rights granted to retired or separated military personnel, all laws, rules and regulations inconsis-
tent with the provisions of this Decree are hereby repealed or modified accordingly.
The OSG further argues that retirement laws are liberally construed in favor of the retirees. Article 4
of the Civil Code provides: "Laws shall have no retroactive effect, unless the contrary is provided."
Section 36 of PD 1638, as amended, provides that it shall take effect upon its approval. It was
signed on 10 September 1979. PD 1638, as amended, does not provide for its retroactive applica-
tion. There is no question that PD 1638, as amended, applies prospectively.
However, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as
amended, should apply only to those who joined the military after its effectivity. Since PD 1638, as
amended, is about the new system of retirement and separation from service of military personnel, it
should apply to those who were in the service at the time of its approval. In fact, Section 2 of PD
1638, as amended, provides that "th[e] Decree shall apply to all military personnel in the service of
the Armed Forces of the Philippines." PD 1638, as amended, was signed on 10 September 1979.
Petitioner retired in 1982, long after the approval of PD 1638, as amended. Hence, the provisions of
PD 1638, as amended, apply to petitioner.
Petitioner Has No Vested Right to his
Retirement Benefits
Petitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the
Constitution and statutes vest in him. Petitioner alleges that his pension, being a property vested by
the Constitution, cannot be removed or taken from him just because he became a naturalized Ameri-
can citizen. Petitioner further alleges that the termination of his monthly pension is a penalty equiva-
lent to deprivation of his life.
The allegations have no merit. PD 1638, as amended, does not impair any vested right or interest of
petitioner. Where the employee retires and meets the eligibility requirements, he acquires a vested
right to the benefits that is protected by the due process clause.14 At the time of the approval of
PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioner’s
retirement benefits were only future benefits and did not constitute a vested right. Before a right to
retirement benefits or pension vests in an employee, he must have met the stated conditions of
eligibility with respect to the nature of employment, age, and length of service.15 It is only upon
retirement that military personnel acquire a vested right to retirement benefits. Retirees enjoy a pro-
tected property interest whenever they acquire a right to immediate payment under pre-existing law.
16
Further, the retirement benefits of military personnel are purely gratuitous in nature. They are not
similar to pension plans where employee participation is mandatory, hence, the employees have con-
tractual or vested rights in the pension which forms part of the compensation.17
Constitutionality of Section 27 of PD 1638
Section 27 of PD 1638, as amended, provides:
Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the re-
tired list of the Armed Forces of the Philippines. The name of a retiree who loses his Filipino citizen-
ship shall be removed from the retired list and his retirement benefits terminated upon such loss.
The OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional. The
OSG argues that the obligation imposed on petitioner to retain his Filipino citizenship as a condition
for him to remain in the AFP retired list and receive his retirement benefit is contrary to public policy
and welfare, oppressive, discriminatory, and violative of the due process clause of the Constitution.
The OSG argues that the retirement law is in the nature of a contract between the government and
its employees. The OSG further argues that Section 27 of PD 1638, as amended, discriminates
against AFP retirees who have changed their nationality.
We do not agree.
33
The constitutional right to equal protection of the laws is not absolute but is subject to reasonable
classification.18 To be reasonable, the classification (a) must be based on substantial distinctions
which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited
to existing conditions only; and (d) must apply equally to each member of the class.19
There is compliance with all these conditions. There is a substantial difference between retirees who
are citizens of the Philippines and retirees who lost their Filipino citizenship by naturalization in anoth-
er country, such as petitioner in the case before us. The constitutional right of the state to require
all citizens to render personal and military service20 necessarily includes not only private citizens but
also citizens who have retired from military service. A retiree who had lost his Filipino citizenship
already renounced his allegiance to the state. Thus, he may no longer be compelled by the state to
render compulsory military service when the need arises. Petitioner’s loss of Filipino citizenship consti-
tutes a substantial distinction that distinguishes him from other retirees who retain their Filipino citi-
zenship. If the groupings are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from another.21
Republic Act No. 707722 (RA 7077) affirmed the constitutional right of the state to a Citizen Armed
Forces. Section 11 of RA 7077 provides that citizen soldiers or reservists include ex-servicemen and
retired officers of the AFP. Hence, even when a retiree is no longer in the active service, he is still a
part of the Citizen Armed Forces. Thus, we do not find the requirement imposed by Section 27 of PD
1638, as amended, oppressive, discriminatory, or contrary to public policy. The state has the right to
impose a reasonable condition that is necessary for national defense. To rule otherwise would be
detrimental to the interest of the state.
There was no denial of due process in this case. When petitioner lost his Filipino citizenship, the AFP
had no choice but to stop his monthly pension in accordance with Section 27 of PD 1638, as
amended. Petitioner had the opportunity to contest the termination of his pension when he requested
for reconsideration of the removal of his name from the list of retirees and the termination of his
pension. The Judge Advocate General denied the request pursuant to Section 27 of PD 1638, as
amended.
Petitioner argues that he can reacquire his Filipino citizenship under Republic Act No. 922523 (RA
9225), in which case he will still be considered a natural-born Filipino. However, petitioner alleges that
if he reacquires his Filipino citizenship under RA 9225, he will still not be entitled to his pension be-
cause of its prior termination. This situation is speculative. In the first place, petitioner has not shown
that he has any intention of reacquiring, or has done anything to reacquire, his Filipino citizenship.
Secondly, in response to the request for opinion of then AFP Chief of Staff, General Efren L. Abu, the
Department of Justice (DOJ) issued DOJ Opinion No. 12, series of 2005, dated 19 January 2005,
thus:
[T]he AFP uniformed personnel retirees, having re-acquired Philippine citizenship pursuant to R.A. No.
9225 and its IRR, are entitled to pension and gratuity benefits reckoned from the date they have
taken their oath of allegiance to the Republic of the Philippines. It goes without saying that these
retirees have no right to receive such pension benefits during the time that they have ceased to be
Filipinos pursuant to the aforequoted P.D. No. 1638, as amended, and any payment made to them
should be returned to the AFP. x x x.24
Hence, petitioner has other recourse if he desires to continue receiving his monthly pension. Just
recently, in AASJS Member-Hector Gumangan Calilung v. Simeon Datumanong,25 this Court upheld the
constitutionality of RA 9225. If petitioner reacquires his Filipino citizenship, he will even recover his
natural-born citizenship.26 In Tabasa v. Court of Appeals,27 this Court reiterated that "[t]he repatria-
tion of the former Filipino will allow him to recover his natural-born citizenship x x x."
Petitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship
since he will again be entitled to the benefits and privileges of Filipino citizenship reckoned from the
time of his reacquisition of Filipino citizenship. There is no legal obstacle to the resumption of his
retirement benefits from the time he complies again with the condition of the law, that is, he can
receive his retirement benefits provided he is a Filipino citizen.
We acknowledge the service rendered to the country by petitioner and those similarly situated. How-
ever, petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638, as
amended. Unless the provision is amended or repealed in the future, the AFP has to apply Section 27
of PD 1638, as amended.
WHEREFORE, we DISMISS the petition. We AFFIRM the 9 January 2003 Decision and 13 January 2004
Resolution of the Commission on Audit.
SO ORDERED.
ANTONIO T. CARPIO
G. R. No. 153888 - July 9, 2003
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., herein represented by PROF. ABDULRAFIH H.
SAYEDY, Petitioner, vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of the President of the
Philippines, herein represented by HON. ALBERTO G. ROMULO, Executive Secretary, and the OFFICE ON
MUSLIM AFFAIRS, herein represented by its Executive Director, HABIB MUJAHAB HASHIM, Respondents.
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the Philippines, Inc.
(IDCP) praying for the declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition
of herein respondents Office of the Executive Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development
License No. SB-01-085, is a non-governmental organization that extends voluntary services to the
Filipino people, especially to Muslim communities. It claims to be a federation of national Islamic orga-
nizations and an active member of international organizations such as the Regional Islamic Da'wah
Council of Southeast Asia and the Pacific (RISEAP)1 and The World Assembly of Muslim Youth. The
RISEAP accredited petitioner to issue halal2 certifications in the Philippines. Thus, among the functions
petitioner carries out is to conduct seminars, orient manufacturers on halal food and issue halal certi-
fications to qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products as halal and also due
to halal food producers' request, petitioner formulated in 1995 internal rules and procedures based
on the Qur'an3 and the Sunnah4 for the analysis of food, inspection thereof and issuance of halal
certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified prod-
ucts and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign
or logo registered in the Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued EO 465 creating the
Philippine Halal Certification Scheme and designating respondent OMA to oversee its implementation.
34
Under the EO, respondent OMA has the exclusive authority to issue halal certificates and perform
other related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal 'Halal' Certification" was
published in the Manila Bulletin, a newspaper of general circulation. In said article, OMA warned Muslim
consumers to buy only products with its official halal certification since those without said certifica-
tion had not been subjected to careful analysis and therefore could contain pork or its derivatives.
Respondent OMA also sent letters to food manufacturers asking them to secure the halal certification
only from OMA lest they violate EO 46 and RA 4109.6 As a result, petitioner lost revenues after food
manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision on the separation of
Church and State.7 It is unconstitutional for the government to formulate policies and guidelines on
the halal certification scheme because said scheme is a function only religious organizations, entity or
scholars can lawfully and validly perform for the Muslims. According to petitioner, a food product
becomes halal only after the performance of Islamic religious ritual and prayer. Thus, only practicing
Muslims are qualified to slaughter animals for food. A government agency like herein respondent OMA
cannot therefore perform a religious function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III of the 1987 Constitution
which provides that "(n)o law impairing the obligation of contracts, shall be passed." After the sub-
ject EO was implemented, food manufacturers with existing contracts with petitioner ceased to obtain
certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16 of Article XIII of the
1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
Sec. 15. The State shall respect the role of independent people's organizations to enable the people
to pursue and protect, within the democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with demonstrated capacity to promote
the public interest and with identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and reasonable participation at
all levels of social, political, and economic decision-making shall not be abridged. The State shall, by
law, facilitate, the establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and without even consulting
Muslim people's organizations like petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the integration of
Muslim Filipinos into the mainstream of Filipino society with due regard to their beliefs, customs, tra-
ditions, and institutions."8 OMA deals with the societal, legal, political and economic concerns of the
Muslim community as a "national cultural community" and not as a religious group. Thus, bearing in
mind the constitutional barrier between the Church and State, the latter must make sure that OMA
does not intrude into purely religious matters lest it violate the non-establishment clause and the
"free exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution.9
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10
Without doubt, classifying a food product as halal is a religious function because the standards used
are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food
products as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also,
by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims
to accept its own interpretation of the Qur'an and Sunnah on halal food.
To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues that the
freedom of religion is subservient to the police power of the State. By delegating to OMA the author-
ity to issue halal certifications, the government allegedly seeks to protect and promote the muslim
Filipinos' right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and welfare of the community
can justify the infringement of religious freedom.11 If the government fails to show the seriousness
and immediacy of the threat, State intrusion is constitutionally unacceptable. In a society with a de-
mocratic framework like ours, the State must minimize its interference with the affairs of its citizens
and instead allow them to exercise reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the government to deprive muslim organiza-
tions, like herein petitioner, of their religious right to classify a product as halal, even on the premise
that the health of muslim Filipinos can be effectively protected by assigning to OMA the exclusive
power to issue halal certifications. The protection and promotion of the muslim Filipinos' right to
health are already provided for in existing laws and ministered to by government agencies charged
with ensuring that food products released in the market are fit for human consumption, properly
labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission
(NMIC) of the Department of Agriculture (DOA) the power to inspect slaughtered animals intended for
human consumption to ensure the safety of the meat released in the market. Another law, RA 7394,
otherwise known as "The Consumer Act of 1992," gives to certain government departments the duty
to protect the interests of the consumer, promote his general welfare and to establish standards of
conduct for business and industry.12 To this end, a food product, before its distribution to the mar-
ket, is required to secure the Philippine Standard Certification Mark after the concerned department
inspects and certifies its compliance with quality and safety standards.13
One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the
Department of Health (DOH). Under Article 22 of said law, BFD has the duty to promulgate and en-
force rules and regulations fixing and establishing a reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers for food. The BFD also ensures that food
products released in the market are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to
protect the consumer against deceptive, unfair and unconscionable sales acts or practices as defined
in Article 50.15 DTI also enforces compulsory labeling and fair packaging to enable the consumer to
obtain accurate information as to the nature, quality and quantity of the contents of consumer prod-
ucts and to facilitate his comparison of the value of such products.16
35
With these regulatory bodies given detailed functions on how to screen and check the quality and
safety of food products, the perceived danger against the health of muslim and non-muslim Filipinos
alike is totally avoided. Of great help are the provisions on labeling of food products (Articles 74 to
85)17 of RA 7394. In fact, through these labeling provisions, the State ably informs the consuming
public of the contents of food products released in the market. Stiff sanctions are imposed on viola-
tors of said labeling requirements.
Through the laws on food safety and quality, therefore, the State indirectly aids muslim consumers in
differentiating food from non-food products. The NMIC guarantees that the meat sold in the market
has been thoroughly inspected and fit for consumption. Meanwhile, BFD ensures that food products
are properly categorized and have passed safety and quality standards. Then, through the labeling
provisions enforced by the DTI, muslim consumers are adequately apprised of the products that con-
tain substances or ingredients that, according to their Islamic beliefs, are not fit for human intake.
These are the non-secular steps put in place by the State to ensure that the muslim consumers' right
to health is protected. The halal certifications issued by petitioner and similar organizations come
forward as the official religious approval of a food product fit for muslim consumption.
We do not share respondents' apprehension that the absence of a central administrative body to
regulate halal certifications might give rise to schemers who, for profit, will issue certifications for
products that are not actually halal. Aside from the fact that muslim consumers can actually verify
through the labels whether a product contains non-food substances, we believe that they are discern-
ing enough to know who the reliable and competent certifying organizations in their community are.
Before purchasing a product, they can easily avert this perceived evil by a diligent inquiry on the
reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is hereby declared NULL AND
VOID. Consequently, respondents are prohibited from enforcing the same.
SO ORDERED.
G.R.. No. 214529, July 12, 2017
JERRYSUS L. TILAR, Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
Before us is a direct recourse from the Decision1 dated June 3, 2014 and the Order2 dated August
19, 2014, both issued by the Regional Trial Court, Branch 14, Baybay City, (RTC) in Special Proceed-
ing (SP) No. B-10-11-39 dismissing the petition for declaration of nullity of marriage on the ground
of lack of jurisdiction over the subject matter, and denying reconsideration thereof, respectively.
The factual antecedents are as follows:
On November 4, 2010, petitioner filed with the RTC a petition3 for declaration of nullity of marriage
on the ground of private respondent's (respondent) psychological incapacity based on Article 36 of
the Family Code. He alleged that he and respondent were married on June 29, 1996 in a Catholic
Church in Poro, Poro Camotes, Cebu with Rev. Fr. Vicente Igot as the solemnizing officer; that a son
was born of their marriage; that their marriage went well in the first few months but respondent later
became an extremely jealous, violent person which resulted to frequent quarrels and petitioner being
threatened and physically harmed; that she is a happy-go-lucky and extravagant type of person and a
gambler; that they eventually separated in 2002; and, that respondent is now living with another man
in Cebu City. Petitioner consulted a clinical psychologist and respondent was said to be suffering from
"aggressive personality disorder as well as histrionic personality disorder" which made her psychologi-
cally incapacitated to comply with her essential marital obligations.
Respondent failed to file her Answer despite being served with summons. The RTC then required the
Public Prosecutor to conduct an investigation whether collusion existed. In his Manifestation and Com-
pliance, the Public Prosecutor certified as to the absence of collusion between the parties.4 Trial,
thereafter, ensued with petitioner and his witness testifying.
On June 3, 2014, the RTC issued its assailed Decision, the dispositive portion of which reads as fol-
lows:
WHEREFORE, PREMISES CONSIDERED, this case is ORDERED DISMISSED for lack of jurisdiction over the
subject matter.5
In so ruling, the RTC ratiocinated in this wise:
x x x the lingering issue that confronts this Court, whether it can validly [pass] upon the validity of
church marriage in the light of the separation of the Church and the State as enunciated in Section 6
of Art. (sic) of the 1987 Constitution. Withal, marriage is a sacrament according to the teaching of
the Catholic Church. Being a sacrament, the same is purely religious. Declaration of nullity, which is
commonly called an annulment in the Catholic Church, is a judgment rendered by an ecclesiastical
tribunal determining that the sacrament of marriage was invalidly contracted. The procedure is gov-
erned by the Church's Canon Law not by the civil law observed by the State in nullity cases involving
civil marriages. Ergo, the principle of separation of Church and State finds application in this case. x x
x
xxxx
Clearly, the State cannot encroach into the domain of the Church, thus, resolving the validity of the
church marriage is outside the province of its authority. Although the Family Code did not categorize
the marriage subject of the petition for nullity or annulment, the Constitution as the fundamental law
of the State laid down the principle of separation, ergo, it is beyond cavil that nullity of a church
marriage cannot be taken out of the church jurisdiction. The court being an entity of the State is
bereft of any jurisdiction to take cognizance of the case.
As the second issue hinges on the affirmative resolution on the jurisdiction of this Court, the same
becomes moot due to the non-affirmance of jurisdiction over the subject matter of the case.6
Petitioner filed his motion for reconsideration, which the RTC denied in an Order dated August 19,
2014.
In denying the motion for reconsideration, the RTC said:
Marriages solemnized and celebrated by the Church are [per se] governed by its Canon Law. Although
the Family Code provides for some regulations, the same does not follow that the State is authorized
to inquire to its validity, The Constitution is supreme to the Family Code. Under the doctrine of con-
stitutional supremacy, the Constitution is written in all laws, acts and transactions, hence, the same
must be upheld.7
Petitioner filed the instant petition for review on the sole ground that:
The Regional Trial Court erred in dismissing the case on the ground that the validity of church mar-
riage is outside of the province of its authority.8
Petitioner contends that the RTC had rendered judgment principally on the ground that the validity of
church marriage is outside the province of its authority, however, it is the civil law, particularly the
Family Code, which principally governs the marriage of the contracting parties.
36
The Solicitor General filed a Manifestation in Lieu of Comment on the petition for review arguing that
the courts have jurisdiction to rule on the validity of marriage pursuant to the provision of the Family
Code, and that the RTC has exclusive jurisdiction over cases involving contracts of marriage and mari-
tal relations.
We find merit in this petition.
Section 2 of Article XV of the Constitution provides:
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Our Constitution clearly gives value to the sanctity of marriage. Marriage in this jurisdiction is not
only a civil contract, but it is a new relation, an institution the maintenance of which the public is
deeply interested.9 Thus, the State is mandated to protect marriage, being the foundation of the
family, which in turn is the foundation of the nation.10 The State has surrounded marriage with safe-
guards to maintain its purity, continuity and permanence. The security and stability of the State are
largely dependent upon it. It is the interest of each and every member of the community to prevent
the bringing about of a condition that would shake its foundation and ultimately lead to its destruc-
tion.11
Our law on marriage, particularly the Family Code, restates the constitutional provision to protect the
inviolability of marriage and the family relations. In one of the whereas clauses of the Family Code, it
is stated:
Whereas, there is a need to implement policies embodied in the New Constitution that strengthen
marriage and the family as a basic social institution and ensure equality between men and women.
Accordingly, Article 1 of the Family Code pertinently provides:
Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage settlements may fix the property relations
during the marriage within the limits provided by this Code.
As marriage is a special contract, their terms and conditions are not merely subject to the stipula-
tions of the contracting parties but are governed by law. The Family Code provides for the essential12
as well as formal13 requisites for the validity of marriage. The absence of any of the essential or
formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect
in any of the essential requisites shall not affect the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally and administratively liable.14 No prescribed
form or religious rite for the solemnization of the marriage is required. It shall be necessary, however,
for the contracting parties to appear personally before the solemnizing officer and declare in the
presence of not less than two witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which shall be signed by the contracting
parties and their witnesses and attested by the solemnizing officer. A marriage license shall be issued
by the local civil registrar of the city or municipality where either contracting party habitually resides,
except in marriages where no license is required.15 The rationale for the compulsory character of a
marriage license is that it is the authority granted by the State to the contracting parties, after the
proper government official has inquired into their capacity to contract marriage.16
The Family Code also provides on who may solemnize and how marriage may be solemnized, thus:
Art. 7. Marriage may be solemnized by:
xxxx
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church
or religious sect and registered with the civil registrar general, acting within the limits of the written
authority granted by his church or religious sect and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or religious sect;
xxxx
Article. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in
the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case
may be, and not elsewhere, except in cases of marriages contracted on the point of death or in
remote places in accordance with Article 29 of this Code, or where both of the parties request the
solemnizing officer in writing in which case the marriage may be solemnized at a house or place des-
ignated by them in a sworn statement to that effect.
Thus, the contract of marriage is entered into by complying with the requirements and formalities
prescribed by law. The marriage of petitioner and respondent which was solemnized by a Catholic
priest and was held in a church was in accordance with the above-quoted provisions. Although, mar-
riage is considered a sacrament in the Catholic church, it has civil and legal consequences which are
governed by the Family Code. As petitioner correctly pointed out, the instant petition only seeks to
nullify the marriage contract between the parties as postulated in the Family Code of the Philippines;
and the declaration of nullity of the parties' marriage in the religious and ecclesiastical aspect is an-
other matter.17 Notably, the proceedings for church annulment which is in accordance with the norms
of Canon Law is not binding upon the State as the couple is still considered married to each other in
the eyes of the civil law. Thus, the principle of separation of the church and state finds no applica-
tion in this case.
As marriage is a lifetime commitment which the parties cannot just dissolve at whim, the Family Code
has provided for the grounds18 for the termination of marriage. These grounds may be invoked and
proved in a petition for annulment of voidable marriage or in a petition for declaration of nullity of
marriage, which can be decided upon only by the court exercising jurisdiction over the matter. Sec-
tion 19 of Batas Pambansa Blg. 129, as amended, otherwise known as the Judiciary Reorganization
Act of 1980 provides:
Section 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdic-
tion:
xxxx
(15) In all actions involving the contract of marriage and marital relations;
Hence, a petition for declaration of nullity of marriage, which petitioner filed before the RTC of Bay-
bay City, falls within its exclusive jurisdiction; thus, the RTC erred in dismissing the petition for lack
of jurisdiction.
WHEREFORE, the petition for review on certiorari isGRANTED. The Regional Trial Court, Branch 14,
Baybay City, Leyte is ORDERED to PROCEED with the resolution of the case based on the sufficiency
of the evidence presented.
SO ORDERED.
[G.R. No. 47800. December 2, 1940.]
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
37

Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents Williams, Fragante
and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION OF
LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS
AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The provisions of section 1 of
Commonwealth Act No. 648 do not confer legislative power upon the Director of Public Works and
the Secretary of Public Works and Communications. The authority therein conferred upon them and
under which they promulgated the rules and regulations now complained of is not to determine what
public policy demands but merely to carry out the legislative policy laid down by the National Assem-
bly in said Act, to wit, "to promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of the Presi-
dent of the Philippines" and to close them temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic thereon makes such action necessary or advisable in the public
convenience and interest." The delegated power, if at all, therefore, is not the determination of what
the law shall be, but merely the ascertainment of the facts and circumstances upon which the appli-
cation of said law is to be predicated. To promulgate rules and regulations on the use of national
roads and to determine when and how long a national road should be closed to traffic, in view of the
condition of the road or the traffic thereon and the requirements of public convenience and interest,
is an administrative function which cannot be directly discharged by the National Assembly. It must
depend on the discretion of some other government official to whom is confided the duty of deter-
mining whether the proper occasion exists for executing the law. But it cannot be said that the exer-
cise of such discretion is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. — Commonwealth Act
No. 548 was passed by the National Assembly in the exercise of the paramount police power of the
state. Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public. In enacting said law, therefore, the National Assembly was prompted by considerations
of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which
is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enact-
ment of said law, and the state in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. Persons and property may be subjected to
all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of
the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights
of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual will fall into slavery. The
citizen should achieve the required balance of liberty and authority in his mind through education and,
personal discipline, so that there may be established the resultant equilibrium, which means peace and
order and happiness for all. The moment greater authority is conferred upon the government, logically
so much is withdrawn from the residuum of liberty which resides in the people. The paradox lies in
the fact that the apparent curtailment of liberty is precisely the very means of insuring its preserva-
tion.
3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization of social and economic forces by the
State so that justice in its rational and objectively secular conception may at least be approximated.
Social justice means the promotion of the welfare of all the people, the adoption by the Government
of measures calculated to insure economic stability of all the competent elements of society, through
the maintenance of a proper economic and social equilibrium in the interrelations of the members of
the community, constitutionally, through the adoption of measures legally justifiable, or extra-consti-
tutionally, through the exercise of powers underlying the existence of all governments on the time-
honored principle of salus populi est suprema lex. Social justice, therefore, must be founded on the
recognition of the necessity of interdependence among divers and diverse units of a society and of
the protection that should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to
the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this
court this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of
the National Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Act-
ing Secretary of Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila;
and Juan Dominguez, as Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940,
resolved to recommend to the Director of Public Works and to the Secretary of Public Works and
Communications that animal-drawn vehicles be prohibited from passing along Rosario Street extending
from Plaza Calderon de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from 1:30
p.m. to 5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo Street to
Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date of the opening of
the Colgante Bridge to traffic; that the Chairman of the National Traffic Commission, on July 18,
1940 recommended to the Director of Public Works the adoption of the measure proposed in the
38
resolution aforementioned, in pursuance of the provisions of Commonwealth Act No. 548 which au-
thorizes said Director of Public Works, with the approval of the Secretary of Public Works and Com-
munications, to promulgate rules and regulations to regulate and control the use of and traffic on
national roads; that on August 2, 1940, the Director of Public Works, in his first indorsement to the
Secretary of Public Works and Communications, recommended to the latter the approval of the rec-
ommendation made by the Chairman of the National Traffic Commission as aforesaid, with the modifi-
cation that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August
10, 1940, the Secretary of Public Works and Communications, in his second indorsement addressed
to the Director of Public Works, approved the recommendation of the latter that Rosario Street and
Rizal Avenue be closed to traffic of animal-drawn vehicles, between the points and during the hours
as above indicated, for a period of one year from the date of the opening of the Colgante Bridge to
traffic; that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to
be enforced the rules and regulations thus adopted; that as a consequence of such enforcement, all
animal-drawn vehicles are not allowed to pass and pick up passengers in the places above-mentioned
to the detriment not only of their owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public
Works, with the approval of the Secretary of Public Works and Communications, is authorized to pro-
mulgate rules and regulations for the regulation and control of the use of and traffic on national
roads and streets is unconstitutional because it constitutes an undue delegation of legislative power.
This contention is untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro
(39 Phil, 660, 700), "The rule has nowhere been better stated than in the early Ohio case decided
by Judge Ranney, and since followed in a multitude of cases, namely: ’The true distinction therefore
is between the delegation of power to make the law, which necessarily involves a discretion as to
what it shall be, and conferring an authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’
(Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief
Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive departments or
subordinate officials thereof, to whom it has committed the execution of certain acts, final on ques-
tions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give
prominence to the ’necessity’ of the case." cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows: jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated
as national roads by acts of the National Assembly or by executive orders of the President of the
Philippines, the Director of Public Works, with the approval of the Secretary of Public Works and
Communications, shall promulgate the necessary rules and regulations to regulate and control the use
of and traffic on such roads and streets. Such rules and regulations, with the approval of the Presi-
dent, may contain provisions controlling or regulating the construction of buildings or other structures
within a reasonable distance from along the national roads. Such roads may be temporarily closed to
any or all classes of traffic by the Director of Public Works and his duly authorized representatives
whenever the condition of the road or the traffic thereon makes such action necessary or advisable
in the public convenience and interest, or for a specified period, with the approval of the Secretary of
Public Works and Communications." cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director of Public Works and
the Secretary of Public Works and Communications. The authority therein conferred upon them and
under which they promulgated the rules and regulations now complained of is not to determine what
public policy demands but merely to carry out the legislative policy laid down by the National Assem-
bly in said Act, to wit, "to promote safe transit upon and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of the Presi-
dent of the Philippines" and to close them temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic makes such action necessary or advisable in the public conve-
nience and interest." The delegated power, if at all, therefore, is not the determination of what the
law shall be, but merely the ascertainment of the facts and circumstances upon which the application
of said law is to be predicated. To promulgate rules and regulations on the use of national roads and
to determine when and how long a national road should be closed to traffic, in view of the condition
of the road or the traffic thereon and the requirements of public convenience and interest, is an
administrative function which cannot be directly discharged by the National Assembly. It must depend
on the discretion of some other government official to whom is confided the duty of determining
whether the proper occasion exists for executing the law. But it cannot be said that the exercise of
such discretion is the making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert
that a law is less than a law, because it is made to depend on a future event or act, is to rob the
Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a
state of affairs not yet developed, or to things future and impossible to fully know." The proper
distinction the court said was this: "The Legislature cannot delegate its power to make the law; but
it can make a law to delegate a power to determine some fact or state of things upon which the law
makes, or intends to make, its own action depend. To deny this would be to stop the wheels of
government. There are many things upon which wise and useful legislation must depend which cannot
be known to the law-making power, and, must, therefore, be a subject of inquiry and determination
outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12,
1939, and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, promul-
gated June 26, 1940, this Court had occasion to observe that the principle of separation of powers
has been made to adapt itself to the complexities of modern governments, giving rise to the adop-
tion, within certain limits, of the principle of "subordinate legislation," not only in the United States
and England but in practically all modern governments. Accordingly, with the growing complexity of
modern life, the multiplication of the subjects of governmental regulations, and the increased difficul-
ty of administering the laws, the rigidity of the theory of separation of governmental powers has, to
a large extent, been relaxed by permitting the delegation of greater powers by the legislative and
vesting a larger amount of discretion in administrative and executive officials, not only in the execu-
tion of the laws, but also in the promulgation of certain rules and regulations calculated to promote
public interest.
39
The petitioner further contends that the rules and regulations promulgated by the respondents pur-
suant to the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legit-
imate business or trade and abridge the right to personal liberty and freedom of locomotion. Com-
monwealth Act No. 548 was passed by the National Assembly in the exercise of the paramount po-
lice power of the state.
Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to pro-
mote safe transit upon and avoid obstructions on national roads, in the interest and convenience of
the public. In enacting said law, therefore, the National Assembly was prompted by considerations of
public convenience and welfare. It was inspired by a desire to relieve congestion of traffic. which is,
to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment
of said law, and the state in order to promote the general welfare may interfere with personal liberty,
with property, and with business and occupations. Persons and property may be subjected to all kinds
of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state
(U.S. v. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not
be made to prevail over authority because then society will fall into anarchy. Neither should authority
be made to prevail over liberty because then the individual will fall into slavery. The citizen should
achieve the required balance of liberty and authority in his mind through education and personal dis-
cipline, so that there may be established the resultant equilibrium, which means peace and order and
happiness for all. The moment greater authority is conferred upon the government, logically so much
is withdrawn from the residuum of liberty which resides in the people. The paradox lies in the fact
that the apparent curtailment of liberty is precisely the very means of insuring its preservation.
The scope of police power keeps expanding as civilization advances. As was said in the case of Dob-
bins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power is a
continuing one, and a business lawful today may in the future, because of the changed situation, the
growth of population or other causes, become a menace to the public health and welfare, and be
required to yield to the public good." And in People v. Pomar (46 Phil., 440), it was observed that
"advancing civilization is bringing within the police power of the state today things which were not
thought of as being within such power yesterday. The development of civilization, the rapidly increas-
ing 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 many questions for regulation which formerly were not so
considered."cralaw virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe upon the constitu-
tional precept regarding the promotion of social justice to insure the well-being and economic security
of all the people. The promotion of social justice, however, is to be achieved not through a mistaken
sympathy towards any given group. Social justice is "neither communism, nor despotism, nor atom-
ism, nor anarchy," but the humanization of laws and the equalization of social and economic forces
by the State so that justice in its rational and objectively secular conception may at least be approx-
imated. Social justice means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all the competent elements of
society, through the maintenance of a proper economic and social equilibrium in the interrelations of
the members of the community, constitutionally, through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of powers underlying the existence of all governments
on the time-honored principle of salus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the fun-
damental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number." cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.
Avanceña, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.
G.R. No. 80609 August 23, 1988
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION and MARILYN ABUCAY, respondents.
Nicanor G. Nuevas for petitioner.
CRUZ, J.:
The only issue presented in the case at bar is the legality of the award of financial assistance to an
employee who had been dismissed for cause as found by the public respondent.
Marilyn Abucay, a traffic operator of the Philippine Long Distance Telephone Company, was accused
by two complainants of having demanded and received from them the total amount of P3,800.00 in
consideration of her promise to facilitate approval of their applications for telephone installation. 1
Investigated and heard, she was found guilty as charged and accordingly separated from the service.2
She went to the Ministry of Labor and Employment claiming she had been illegally removed. After
consideration of the evidence and arguments of the parties, the company was sustained and the
complaint was dismissed for lack of merit. Nevertheless, the dispositive portion of labor arbiter's
decision declared:
WHEREFORE, the instant complaint is dismissed for lack of merit.
Considering that Dr. Helen Bangayan and Mrs. Consolacion Martinez are not totally blameless in the
light of the fact that the deal happened outhide the premises of respondent company and that their
act of giving P3,800.00 without any receipt is tantamount to corruption of public officers, com-
plainant must be given one month pay for every year of service as financial assistance. 3
Both the petitioner and the private respondent appealed to the National Labor Relations Board, which
upheld the said decision in toto and dismissed the appeals. 4 The private respondent took no further
action, thereby impliedly accepting the validity of her dismissal. The petitioner, however, is now be-
fore us to question the affirmance of the above- quoted award as having been made with grave
abuse of discretion.
In its challenged resolution of September 22, 1987, the NLRC said:
40
... Anent the award of separation pay as financial assistance in complainant's favor, We find the same
to be equitable, taking into consideration her long years of service to the company whereby she had
undoubtedly contributed to the success of respondent. While we do not in any way approve of com-
plainants (private respondent) mal feasance, for which she is to suffer the penalty of dismissal, it is
for reasons of equity and compassion that we resolve to uphold the award of financial assistance in
her favor. 5
The position of the petitioner is simply stated: It is conceded that an employee illegally dismissed is
entitled to reinstatement and backwages as required by the labor laws. However, an employee dis-
missed for cause is entitled to neither reinstatement nor backwages and is not allowed any relief at
all because his dismissal is in accordance with law. In the case of the private respondent, she has
been awarded financial assistance equivalent to ten months pay corresponding to her 10 year service
in the company despite her removal for cause. She is, therefore, in effect rewarded rather than pun-
ished for her dishonesty, and without any legal authorization or justification. The award is made on
the ground of equity and compassion, which cannot be a substitute for law. Moreover, such award
puts a premium on dishonesty and encourages instead of deterring corruption.
For its part, the public respondent claims that the employee is sufficiently punished with her dis-
missal. The grant of financial assistance is not intended as a reward for her offense but merely to
help her for the loss of her employment after working faithfully with the company for ten years. In
support of this position, the Solicitor General cites the cases of Firestone Tire and Rubber Company
of the Philippines v. Lariosa 6 and Soco v. Mercantile Corporation of Davao, 7 where the employees
were dismissed for cause but were nevertheless allowed separation pay on grounds of social and
compassionate justice. As the Court put it in the Firestone case:
In view of the foregoing, We rule that Firestone had valid grounds to dispense with the services of
Lariosa and that the NLRC acted with grave abuse of discretion in ordering his reinstatement. Howev-
er, considering that Lariosa had worked with the company for eleven years with no known previous
bad record, the ends of social and compassionate justice would be served if he is paid full separation
pay but not reinstatement without backwages by the NLRC.
In the said case, the employee was validly dismissed for theft but the NLRC nevertheless awarded
him full separation pay for his 11 years of service with the company. In Soco, the employee was also
legally separated for unauthorized use of a company vehicle and refusal to attend the grievance pro-
ceedings but he was just the same granted one-half month separation pay for every year of his 18-
year service.
Similar action was taken in Filipro, Inc. v. NLRC, 8 where the employee was validly dismissed for pre-
ferring certain dealers in violation of company policy but was allowed separation pay for his 2 years
of service. In Metro Drug Corporation v. NLRC, 9 the employee was validly removed for loss of confi-
dence because of her failure to account for certain funds but she was awarded separation pay equiv-
alent to one-half month's salary for every year of her service of 15 years. In Engineering Equipment,
Inc. v. NLRC, 10 the dismissal of the employee was justified because he had instigated labor unrest
among the workers and had serious differences with them, among other grounds, but he was still
granted three months separation pay corresponding to his 3-year service. In New Frontier Mines, Inc.
v. NLRC, 11 the employee's 3- year service was held validly terminated for lack of confidence and
abandonment of work but he was nonetheless granted three months separation pay. And in San
Miguel Corporation v. Deputy Minister of Labor and Employment, et al ., 12 full separation pay for 6,
10, and 16 years service, respectively, was also allowed three employees who had been dismissed
after they were found guilty of misappropriating company funds.
The rule embodied in the Labor Code is that a person dismissed for cause as defined therein is not
entitled to separation pay. 13 The cases above cited constitute the exception, based upon considera-
tions of equity. Equity has been defined as justice outside law, 14 being ethical rather than jural and
belonging to the sphere of morals than of law. 15 It is grounded on the precepts of conscience and
not on any sanction of positive law. 16 Hence, it cannot prevail against the expressed provision of the
labor laws allowing dismissal of employees for cause and without any provision for separation pay.
Strictly speaking, however, it is not correct to say that there is no express justification for the grant
of separation pay to lawfully dismissed employees other than the abstract consideration of equity.
The reason is that our Constitution is replete with positive commands for the promotion of social
justice, and particularly the protection of the rights of the workers. The enhancement of their welfare
is one of the primary concerns of the present charter. In fact, instead of confining itself to the gen-
eral commitment to the cause of labor in Article II on the Declaration of Principles of State Policies,
the new Constitution contains a separate article devoted to the promotion of social justice and hu-
man rights with a separate sub- topic for labor. Article XIII expressly recognizes the vital role of labor,
hand in hand with management, in the advancement of the national economy and the welfare of the
people in general. The categorical mandates in the Constitution for the improvement of the lot of the
workers are more than sufficient basis to justify the award of separation pay in proper cases even if
the dismissal be for cause.
The Court notes, however, that where the exception has been applied, the decisions have not been
consistent as to the justification for the grant of separation pay and the amount or rate of such
award. Thus, the employees dismissed for theft in the Firestone case and for animosities with fellow
workers in the Engineering Equipment case were both awarded separation pay notnvithstanding that
the first cause was certainly more serious than the second. No less curiously, the employee in the
Soco case was allowed only one-half month pay for every year of his 18 years of service, but in
Filipro the award was two months separation pay for 2 years service. In Firestone, the emplovee was
allowed full separation pay corresponding to his 11 years of service, but in Metro, the employee was
granted only one-half month separation pay for every year of her 15year service. It would seem then
that length of service is not necessarily a criterion for the grant of separation pay and neither appar-
ently is the reason for the dismissal.
The Court feels that distinctions are in order. We note that heretofore the separation pay, when it
was considered warranted, was required regardless of the nature or degree of the ground proved, be
it mere inefficiency or something graver like immorality or dishonesty. The benediction of compassion
was made to cover a multitude of sins, as it were, and to justify the helping hand to the validly
dismissed employee whatever the reason for his dismissal. This policy should be re-examined. It is
time we rationalized the exception, to make it fair to both labor and management, especially to labor.
There should be no question that where it comes to such valid but not iniquitous causes as failure to
comply with work standards, the grant of separation pay to the dismissed employee may be both
just and compassionate, particularly if he has worked for some time with the company. For example,
a subordinate who has irreconcilable policy or personal differences with his employer may be validly
dismissed for demonstrated loss of confidence, which is an allowable ground. A working mother who
has to be frequently absent because she has also to take care of her child may also be removed
because of her poor attendance, this being another authorized ground. It is not the employee's fault
41
if he does not have the necessary aptitude for his work but on the other hand the company cannot
be required to maintain him just the same at the expense of the efficiency of its operations. He too
may be validly replaced. Under these and similar circumstances, however, the award to the employee
of separation pay would be sustainable under the social justice policy even if the separation is for
cause.
But where the cause of the separation is more serious than mere inefficiency, the generosity of the
law must be more discerning. There is no doubt it is compassionate to give separation pay to a
salesman if he is dismissed for his inability to fill his quota but surely he does not deserve such gen-
erosity if his offense is misappropriation of the receipts of his sales. This is no longer mere incompe-
tence but clear dishonesty. A security guard found sleeping on the job is doubtless subject to dis-
missal but may be allowed separation pay since his conduct, while inept, is not depraved. But if he
was in fact not really sleeping but sleeping with a prostitute during his tour of duty and in the com-
pany premises, the situation is changed completely. This is not only inefficiency but immorality and
the grant of separation pay would be entirely unjustified.
We hold that henceforth separation pay shall be allowed as a measure of social justice only in those
instances where the employee is validly dismissed for causes other than serious misconduct or those
reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual
intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow
worker, the employer may not be required to give the dismissed employee separation pay, or financial
assistance, or whatever other name it is called, on the ground of social justice.
A contrary rule would, as the petitioner correctly argues, have the effect, of rewarding rather than
punishing the erring employee for his offense. And we do not agree that the punishment is his dis-
missal only and that the separation pay has nothing to do with the wrong he has committed. Of
course it has. Indeed, if the employee who steals from the company is granted separation pay even
as he is validly dismissed, it is not unlikely that he will commit a similar offense in his next employ-
ment because he thinks he can expect a like leniency if he is again found out. This kind of misplaced
compassion is not going to do labor in general any good as it will encourage the infiltration of its
ranks by those who do not deserve the protection and concern of the Constitution.
The policy of social justice is not intended to countenance wrongdoing simply because it is commit-
ted by the underprivileged. At best it may mitigate the penalty but it certainly will not condone the
offense. Compassion for the poor is an imperative of every humane society but only when the recipi-
ent is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge
of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those
who invoke social justice may do so only if their hands are clean and their motives blameless and not
simply because they happen to be poor. This great policy of our Constitution is not meant for the
protection of those who have proved they are not worthy of it, like the workers who have tainted
the cause of labor with the blemishes of their own character.
Applying the above considerations, we hold that the grant of separation pay in the case at bar is
unjustified. The private respondent has been dismissed for dishonesty, as found by the labor arbiter
and affirmed by the NLRC and as she herself has impliedly admitted. The fact that she has worked
with the PLDT for more than a decade, if it is to be considered at all, should be taken against her as
it reflects a regrettable lack of loyalty that she should have strengthened instead of betraying during
all of her 10 years of service with the company. If regarded as a justification for moderating the
penalty of dismissal, it will actually become a prize for disloyalty, perverting the meaning of social
justice and undermining the efforts of labor to cleanse its ranks of all undesirables.
The Court also rules that the separation pay, if found due under the circumstances of each case,
should be computed at the rate of one month salary for every year of service, assuming the length
of such service is deemed material. This is without prejudice to the application of special agreements
between the employer and the employee stipulating a higher rate of computation and providing for
more benefits to the discharged employee. 17
WHEREFORE, the petition is GRANTED. The challenged resolution of September 22,1987, is AFFIRMED
in toto except for the grant of separation pay in the form of financial assistance, which is hereby
DISALLOWED. The temporary restraining order dated March 23, 1988, is LIFTED. It is so ordered.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Me-
dialdea, JJ., concur.
 
 
Separate Opinions
 
FERNAN, C.J., dissenting:
The majority opinion itself declares that the reason for granting separation pay to lawfully dismissed
employees is that "our Constitution is replete with positive commands for the promotion of social
justice, and particularly the protection of the rights of the workers." 1
It is my firm belief that providing a rigid mathematical formula for determining the amounts of such
separation pay will not be in keeping with these constitutional directives. By computing the allowable
financial assistance on the formula suggested, we shall be closing our eyes to the spirit underlying
these constitutional mandates that "those who have less in life should have more in law." It cannot
be denied that a low salaried employee who is separated from work would suffer more hardship than
a well-compensated one. Yet, if we follow the formula suggested, we would in effect be favoring the
latter instead of the former, as it would be the low- salaried employee who would encounter difficulty
finding another job.
I am in accord with the opinion of Justice Sarmiento that we should not rationalize compassion and
that of Justice Padilla that the awards of financial assistance should be left to the discretion of the
National Labor Relations Commission as may be warranted by the "environmental facts" of the case.
PADILIA, J., separate opinion
I concur in the decision penned by Mr. Justice Cruz when it disallows separation pay, as financial
assistance, to the private respondent, since the ground for termination of employment is dishonesty
in the performance of her duties.
I do not, however, subscribe to the view that "the separation pay, if found due under the circum-
stances of each case, should be computed at the rate of one month salary for every year of service,
assuming the length of such service is deemed material." (p.11, Decision). It is my considered view
that, except for terminations based on dishonesty and serious misconduct involving moral turpitude-
where no separation pay should be allowed--in other cases, the grant of separation pay, i.e. the
amount thereof, as financial assistance to the terminated employee, should be left to the judgment
of the administrative agency concemed which is the NLRC. It is in such cases- where the termination
of employment is for a valid cause without, however, involving dishonesty or serious misconduct in-
volving moral turpitude-that the Constitutional policy of affording protection to labor should be al-
42
lowed full play; and this is achieved by leaving to the NLRC the primary jurisdiction and judgment to
determine the amount of separation pay that should be awarded to the terminated employee in ac-
cordance with the "environmental facts" of each case.
It is further my view that the Court should not, as a rule, disturb or alter the amount of separation
pay awarded by the NLRC in such cases of valid termination of employment but with the financial
assistance, in the absence of a demonstrated grave abuse of discretion on the part of the NLRC.
GRIÑO AQUINO, J., dissent:
We should not rationalize compassion. I vote to affirm the grant of financial assistance.
 
 
Separate Opinions
FERNAN, C.J., dissenting:
The majority opinion itself declares that the reason for granting separation pay to lawfully dismissed
employees is that "our Constitution is replete with positive commands for the promotion of social
justice, and particularly the protection of the rights of the workers." 1
It is my firm belief that providing a rigid mathematical formula for determining the amounts of such
separation pay will not be in keeping with these constitutional directives. By computing the allowable
financial assistance on the formula suggested, we shall be closing our eyes to the spirit underlying
these constitutional mandates that "those who have less in life should have more in law." It cannot
be denied that a low salaried employee who is separated from work would suffer more hardship than
a well-compensated one. Yet, if we follow the formula suggested, we would in effect be favoring the
latter instead of the former, as it would be the low- salaried employee who would encounter difficulty
finding another job.
I am in accord with the opinion of Justice Sarmiento that we should not rationalize compassion and
that of Justice Padilla that the awards of financial assistance should be left to the discretion of the
National Labor Relations Commission as may be warranted by the "environmental facts" of the case.
PADILIA, J., separate opinion
I concur in the decision penned by Mr. Justice Cruz when it disallows separation pay, as financial
assistance, to the private respondent, since the ground for termination of employment is dishonesty
in the performance of her duties.
I do not, however, subscribe to the view that "the separation pay, if found due under the circum-
stances of each case, should be computed at the rate of one month salary for every year of service,
assuming the length of such service is deemed material." (p.11, Decision). It is my considered view
that, except for terminations based on dishonesty and serious misconduct involving moral turpitude-
where no separation pay should be allowed--in other cases, the grant of separation pay, i.e. the
amount thereof, as financial assistance to the terminated employee, should be left to the judgment
of the administrative agency concemed which is the NLRC. It is in such cases- where the termination
of employment is for a valid cause without, however, involving dishonesty or serious misconduct in-
volving moral turpitude-that the Constitutional policy of affording protection to labor should be al-
lowed full play; and this is achieved by leaving to the NLRC the primary jurisdiction and judgment to
determine the amount of separation pay that should be awarded to the terminated employee in ac-
cordance with the "environmental facts" of each case.
It is further my view that the Court should not, as a rule, disturb or alter the amount of separation
pay awarded by the NLRC in such cases of valid termination of employment but with the financial
assistance, in the absence of a demonstrated grave abuse of discretion on the part of the NLRC.
GRIÑO AQUINO, J., dissent:
We should not rationalize compassion. I vote to affirm the grant of financial assistance.
G.R. No. 204819               April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Sec-
retary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando
M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tans-
ingco & Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese An-
tonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C.
Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves
and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children, Renz Jef-
frey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R.
Racho & Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho, Mikaela
Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi
Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and
on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah
Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katri-
na R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROX-
AS II, Secretary, Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Sec-
retary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chair-
person, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented by
its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by its President
43
Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented by its Presi-
dent Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President
and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton,
M.D., as member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA
G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MAR-
LON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO
N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO, Sec-
retary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President,
Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael
Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare
and Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL AN-
THONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the De-
partment of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health;
HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in
her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO
L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO
N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Sec-
retary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH, DE-
PARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
44
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBO-
RAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department
of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II, Sec-
retary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Depart-
ment of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Manage-
ment, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed coun-
try, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While govern-
mental policies have been geared towards the revitalization of the economy, the bludgeoning dearth
in social services remains to be a problem that concerns not only the poor, but every member of
society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole.
The legislative branch, as the main facet of a representative government, endeavors to enact laws
and policies that aim to remedy looming societal woes, while the executive is closed set to fully im-
plement these measures and bring concrete and substantial solutions within the reach of Juan dela
Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental body that
merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate. Passive,
yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty to inter-
pret legislation vis-a-vis the most vital and enduring principle that holds Philippine society together -
the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the sub-
jects and their perceived consequences freely circulate in various media. From television debates2 to
sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized by members
of the clergy4 - the clash between the seemingly antithetical ideologies of the religious conservatives
and progressive liberals has caused a deep division in every level of the society. Despite calls to
withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the Responsi-
ble Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on Decem-
ber 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2) peti-
tions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann
C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor
children; and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational insti-
tution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through
its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal capacities as
citizens and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S.
Avila, in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned educational institution, and several others,13 in their
capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apos-
tolate of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and
several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens
and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and
Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn.
Atty. Alan F. Paguia is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several
others,25 in their capacities as citizens and taxpayers and on behalf of its associates who are mem-
bers of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpay-
ers and members of the Bar (MSF);
45
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their
capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several
others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capaci-
ties as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a
taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political
party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding
its declared policy against abortion, the implementation of the RH Law would authorize the purchase
of hormonal contraceptives, intra-uterine devices and injectables which are abortives, in violation of
Section 12, Article II of the Constitution which guarantees protection of both the life of the mother
and the life of the unborn from conception.35
• The RH Law violates the right to health and the right to protection against hazardous products.
The petitioners posit that the RH Law provides universal access to contraceptives which are haz-
ardous to one's health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend that the RH Law vio-
lates the constitutional guarantee respecting religion as it authorizes the use of public funds for the
procurement of contraceptives. For the petitioners, the use of public funds for purposes that are
believed to be contrary to their beliefs is included in the constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, im-
prisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39
provides that skilled health professionals who are public officers such as, but not limited to, Pro-
vincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are specifically charged with
the duty to implement these Rules, cannot be considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state inter-
est test" to justify the regulation of the right to free exercise of religion and the right to free
speech.42
• The RH Law violates the constitutional provision on involuntary servitude. According to the petition-
ers, the RH Law subjects medical practitioners to involuntary servitude because, to be accredited
under the PhilHealth program, they are compelled to provide forty-eight (48) hours of pro bona ser-
vices for indigent women, under threat of criminal prosecution, imprisonment and other forms of
punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practi-
tioner would effectively be forced to render reproductive health services since the lack of PhilHealth
accreditation would mean that the majority of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discrim-
inates against the poor as it makes them the primary target of the government program that pro-
motes contraceptive use. The petitioners argue that, rather than promoting reproductive health
among the poor, the RH Law seeks to introduce contraceptives that would effectively reduce the
number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or fine for "any violation," it is vague because it does not
define the type of conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a full range of family
planning methods is plainly to curtail his right to expound only his own preferred way of family plan-
ning. The petitioners note that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another healthcare facility willing to
perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is
contended that the RH Law providing for mandatory reproductive health education intrudes upon their
constitutional right to raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative authority. The peti-
tioners question the delegation by Congress to the FDA of the power to determine whether a prod-
uct is non-abortifacient and to be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Au-
tonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for repro-
ductive health measures at the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
46
(OSG) which commented on the petitions in behalf of the respondents,55 Congressman Edcel C. Lag-
man,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa
"Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-Intervention
in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also grant-
ed leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to deter-
mine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distrib-
ution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A.
No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices." Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was pro-
vided that "no drug or chemical product or device capable of provoking abortion or preventing con-
ception as classified by the Food and Drug Administration shall be delivered or sold to any person
without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recog-
nized that the population problem should be considered as the principal element for long-term eco-
nomic development, enacted measures that promoted male vasectomy and tubal ligation to mitigate
population growth.67 Among these measures included R.A. No. 6365, approved on August 16, 1971,
entitled "An Act Establishing a National Policy on Population, Creating the Commission on Population
and for Other Purposes. " The law envisioned that "family planning will be made part of a broad edu-
cational program; safe and effective means will be provided to couples desiring to space or limit fami-
ly size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree.
(P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a part of a
broad educational program," provided "family planning services as a part of over-all health care," and
made "available all acceptable methods of contraception, except abortion, to all Filipino citizens de-
sirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the com-
mitments made in the International Conference on Population and Development.70 Thus, on August
14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among
others, mandated the State to provide for comprehensive health services and programs for women,
including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive
and the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the
RH Law was enacted to provide Filipinos, especially the poor and the marginalized, access and infor-
mation to the full range of modem family planning methods, and to ensure that its objective to pro-
vide for the peoples' right to reproductive health be achieved. To make it more effective, the RH Law
made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education. To
put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence of
the RH Law, violates the right to health of women and the sanctity of life, which the State is man-
dated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms
of family planning methods and the implementer of the program by ensuring the widespread dissemi-
nation of, and universal access to, a full range of family planning methods, devices and supplies.74
ISSUES
47
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controver-
sy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit
to the legislative and political wisdom of Congress and respect the compromises made in the crafting
of the RH Law, it being "a product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to im-
plement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be chal-
lenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be es-
tablished by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those cher-
ished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited,
the Constitution makes no distinction as to the kind of legislation that may be subject to judicial
scrutiny, be it in the form of social legislation or otherwise. The reason is simple and goes back to
the earlier point. The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make sure
that they have acted in consonance with their respective authorities and rights as mandated of them
by the Constitution. If after said review, the Court finds no constitutional violations of any sort, then,
it has no more authority of proscribing the actions under review.90 This is in line with Article VIII,
Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/
nullify, when proper, acts of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on applied in Macalintal v. COM-
ELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitu-
tion, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch
is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the
48
duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once
a "controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing opera-
tion.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of consti-
tutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or con-
troversy because the RH Law has yet to be implemented.97 They claim that the questions raised by
the petitions are not yet concrete and ripe for adjudication since no one has been charged with vio-
lating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a theoretical question
or issue. There ought to be an actual and substantial controversy admitting of specific relief through
a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon
a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A
question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD)
was put in question, it was argued that the Court has no authority to pass upon the issues raised as
there was yet no concrete act performed that could possibly violate the petitioners' and the inter-
venors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is evi-
dent that the subject petitions present a justiciable controversy. As stated earlier, when an action of
the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations thereof,
particularly public health officers who are threatened to be dismissed from the service with forfeiture
of retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending
that the RH Law cannot be challenged "on its face" as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Chal-
lenge, is one that is launched to assail the validity of statutes concerning not only protected speech,
but also all other rights in the First Amendment.106 These include religious freedom, freedom of the
press, and the right of the people to peaceably assemble, and to petition the Government for a re-
dress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press and
peaceful assembly are but component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally main-
tained, albeit with some modifications. While this Court has withheld the application of facial chal-
lenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights.109 The underly-
ing reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned
a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred peti-
tions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these peti-
tions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been trans-
gressed, to the detriment of the Filipino people.
Locus Standi
49
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It con-
tends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed law
has yet to be enforced and applied against them,111 and the government has yet to distribute repro-
ductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental act.113
It requires a personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.
115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount im-
portance where serious constitutional questions are involved, the standing requirement may be relaxed
and a suit may be allowed to prosper even where there is no direct injury to the party claiming the
right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders although they had only an indi-
rect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-ap-
plied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement. It
has accorded certain individuals standing to sue, not otherwise directly injured or with material inter-
est affected by a Government act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on more
than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citi-
zens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been
directly injured by the operation of a law or any other government act. As held in Jaworski v. PAG-
COR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition,
the transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is in
accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed
to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law dras-
tically affects the constitutional provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact that the issues of contra-
ception and reproductive health have already caused deep division among a broad spectrum of soci-
ety, the Court entertains no doubt that the petitions raise issues of transcendental importance war-
ranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken
away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications and
prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the coun-
try's population. While it claims to save lives and keep our women and children healthy, it also pro-
motes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to provide
Filipinos, especially the poor and the marginalized, with access to information on the full range of
modem family planning products and methods. These family planning methods, natural or modem,
however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception per-
vades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the provi-
50
sions that refer to contraception or are related to it and the RH Law loses its very foundation.127 As
earlier explained, "the other positive provisions such as skilled birth attendance, maternal care includ-
ing pre-and post-natal services, prevention and management of reproductive tract infections including
HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling,
Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the con-
tents and the minute details therein. The rule is sufficiently complied with if the title is comprehen-
sive enough as to include the general object which the statute seeks to effect, and where, as here,
the persons interested are informed of the nature, scope and consequences of the proposed law and
its operation. Moreover, this Court has invariably adopted a liberal rather than technical construction
of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education and infor-
mation, and the right to choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncer-
tain that the average person reading it would not be informed of the purpose of the enactment or
put on inquiry as to its contents, or which is misleading, either in referring to or indicating one sub-
ject where another or different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to abortifa-
cients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protec-
tion to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contracep-
tives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family
planning products and supplies, medical research shows that contraceptives use results in abortion as
they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that
the State sanction of contraceptive use contravenes natural law and is an affront to the dignity of
man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration
(FDA) to certify that the product or supply is not to be used as an abortifacient, the assailed legisla-
tion effectively confirms that abortifacients are not prohibited. Also considering that the FDA is not
the agency that will actually supervise or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make a certification that it shall not be used
for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitu-
tion was simply the prohibition of abortion. They contend that the RH Law does not violate the Con-
stitution since the said law emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to various
studies and consultations with the World Health Organization (WHO) and other experts in the medical
field, it is asserted that the Court afford deference and respect to such a determination and pass
judgment only when a particular drug or device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law specifi-
cally provides that only contraceptives that do not prevent the implantation of the fertilized ovum
are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not
of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the coun-
try has long recognized the need to promote population control through the use of contraceptives in
order to achieve long-term economic development. Through the years, however, the use of contra-
ceptives and other family planning methods evolved from being a component of demographic man-
agement, to one centered on the promotion of public health, particularly, reproductive health.140
51
This has resulted in the enactment of various measures promoting women's rights and health and the
overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine national population pro-
gram has always been grounded two cornerstone principles: "principle of no-abortion" and the "princi-
ple of non-coercion."141 As will be discussed later, these principles are not merely grounded on admin-
istrative policy, but rather, originates from the constitutional protection expressly provided to afford
protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Sec-
tion 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character shall receive the support of
the Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at implanta-
tion. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in
their plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without at-
tempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed com-
pels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to pre-
vail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufactur-
ing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/
she could die. Even a child inside the womb already has life. No less than the Constitution recognizes
the life of the unborn from conception, that the State must protect equally with the life of the
mother. If the unborn already has life, then the cessation thereof even prior to the child being deliv-
ered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment
of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
52
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chro-
mosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized ovum
is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum
is both alive and human, then, as night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment
of fertilization" was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitu-
tion, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define life
to begin from six months after fertilization; and that would really be very, very, dangerous. It is now
determined by science that life begins from the moment of conception. There can be no doubt about
it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed al-
ready. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain con-
traceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What hap-
pens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach the
uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives should be
banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not
these certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earli-
est opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contra-
ceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to
have a constitutional provision on the right to life, recognized that the determination of whether a
contraceptive device is an abortifacient is a question of fact which should be left to the courts to
decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
x x x           x x x          x x x
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in
the world by fighting for a nuclear-free world. I would just like to be assured of the legal and prag-
matic implications of the term "protection of the life of the unborn from the moment of conception."
I raised some of these implications this afternoon when I interjected in the interpellation of Commis-
sioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of concep-
tion" we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn
yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as
the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some
of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
53
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization (concep-
tion). Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the
sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum,
known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary circumstances,
a new, genetically distinct human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is
restored and the embryonic genome is formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproduc-
tive Health Bill (Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This con-
clusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a scientifi-
cally well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and succes-
sive stages in the reproductive process. They are not identical and synonymous."166 Citing a letter of
the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized ovum is
the commencement of conception and it is only after implantation that pregnancy can be medically
detected."167
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It
does not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote
is not an inanimate object - it is a living human being complete with DNA and 46 chromosomes.168
Implantation has been conceptualized only for convenience by those who had population control in
mind. To adopt it would constitute textual infidelity not only to the RH Law but also to the Constitu-
tion.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion. It
was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was cap-
tured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner Bernar-
do Villegas, the principal proponent of the protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and actually proscribes abor-
tion. While the Court has opted not to make any determination, at this stage, when life begins, it
finds that the RH Law itself clearly mandates that protection be afforded from the moment of fertil-
ization. As pointed out by Justice Carpio, the RH Law is replete with provisions that embody the
policy of the law to protect to the fertilized ovum and that it should be afforded safe travel to the
uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
54
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-relat-
ed problems. It also includes sexual health, the purpose of which is the enhancement of life and per-
sonal relations. The elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and repro-
ductive health: Provided, however, That reproductive health rights do not include abortion, and access
to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree
or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to
or is inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of fertil-
ization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent implan-
tation, but also those that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determina-
tion of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a bound-
en duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively above, refers to that which
induces the killing or the destruction of the fertilized ovum, and, second, prohibits any drug or device
the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest. Rather,
it recognizes that: one, there is a need to protect the fertilized ovum which already has life, and two,
the fertilized ovum must be protected the moment it becomes existent - all the way until it reaches
and implants in the mother's womb. After all, if life is only recognized and afforded protection from
the moment the fertilized ovum implants - there is nothing to prevent any drug or device from killing
or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertiliza-
tion, not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sus-
tained but that instance of implantation is not the point of beginning of life. It started earlier. And as
defined by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the
fertilized ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is
an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product
or supply included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it is not to be used as an abortifacient"
as empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will
not all be used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contracep-
tives, however, the Court finds that the proviso of Section 9, as worded, should bend to the legisla-
tive intent and mean that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is consistent with the proviso under the second
paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as fol-
lows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
55
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis sup-
plied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient"
only those that primarily induce abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they point-
ed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a)
of the RH Law and its declared policy against abortion, the undeniable conclusion is that contracep-
tives to be included in the PNDFS and the EDL will not only be those contraceptives that do not
have the primary action of causing abortion or the destruction of a fetus inside the mother's womb
or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its im-
plementing rules must be consistent with each other in prohibiting abortion. Thus, the word " primari-
ly" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of Section
3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary effect of
being an abortive would effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section
12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the matter, the petitioners posit that
the risk of developing breast and cervical cancer is greatly increased in women who use oral contra-
ceptives as compared to women who never use them. They point out that the risk is decreased when
the use of contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous thromboembolism, a twofold
increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial infarction.177
Given the definition of "reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of
the RH Law, the petitioners assert that the assailed legislation only seeks to ensure that women have
pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory, the
OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health
of women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this regard, the Constitution
is replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-
development, and self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from substandard or haz-
ardous products.
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provi-
sions clearly express the contrary, the provisions of the Constitution should be considered self-execu-
tory. There is no need for legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitu-
tional mandate, the presumption now is that all provisions of the constitution are self-executing. If
the constitutional provisions are treated as requiring legislation instead of self-executing, the legisla-
56
ture would have the power to ignore and practically nullify the mandate of the fundamental law. This
can be cataclysmic. That is why the prevailing view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-execut-
ing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be consid-
ered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed implement-
ing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question con-
traception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they
are dispensed by a prescription of a duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions
of R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its re-
quirements are still in to be complied with. Thus, the Court agrees with the observation of respon-
dent Lagman that the effectivity of the RH Law will not lead to the unmitigated proliferation of con-
traceptives since the sale, distribution and dispensation of contraceptive drugs and devices will still
require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate
safeguards to ensure the public that only contraceptives that are safe are made available to the
public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and
used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other Purpos-
es" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with the RH
Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or other-
wise distribute whether for or without consideration, any contraceptive drug or device, unless such
sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with
the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the
purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or other-
wise be made available to the consuming public except through a prescription drugstore or hospital
pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of contra-
ceptives, whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the Origi-
nal. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which pro-
vides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute
to LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall co-
ordinate with all appropriate local government bodies to plan and implement this procurement and
distribution program. The supply and budget allotments shall be based on, among others, the current
levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consis-
tent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provi-
sions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will procure
shall be from a duly licensed drug store or pharmaceutical company and that the actual dispensation
of these contraceptive drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be indiscriminately done.
The public health must be protected by all possible means. As pointed out by Justice De Castro, a
heavy responsibility and burden are assumed by the government in supplying contraceptive drugs and
devices, for it may be held accountable for any injury, illness or loss of life resulting from or inciden-
tal to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contra-
ceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section 9 that
ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and approved by the FDA.
57
The FDA, not Congress, has the expertise to determine whether a particular hormonal contraceptive
or intrauterine device is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific examina-
tion.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the consti-
tutional proscription, there are those who, because of their religious education and background, sin-
cerely believe that contraceptives, whether abortifacient or not, are evil. Some of these are medical
practitioners who essentially claim that their beliefs prohibit not only the use of contraceptives but
also the willing participation and cooperation in all things dealing with contraceptive use. Petitioner
PAX explained that "contraception is gravely opposed to marital chastity, it is contrary to the good
of the transmission of life, and to the reciprocal self-giving of the spouses; it harms true love and
denies the sovereign rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives, arguing that the expen-
diture of their taxes on contraceptives violates the guarantee of religious freedom since contracep-
tives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the recogni-
tion is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3) the
option to refer a patient seeking reproductive health services and information - no escape is afforded
the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other individuals to conscientiously object, such as: a)
those working in public health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to
in Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents en-
croach upon the religious freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seek-
ing reproductive health care services to another provider infringes on one's freedom of religion as it
forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to reli-
gious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/
or imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by provid-
ing accessible, effective and quality reproductive health services to ensure maternal and child health,
in line with the State's duty to bring to reality the social justice health guarantees of the Constitu-
tion,197 and that what the law only prohibits are those acts or practices, which deprive others of their
right to reproductive health.198 They assert that the assailed law only seeks to guarantee informed
choice, which is an assurance that no one will be compelled to violate his religion against his free will.
199
The respondents add that by asserting that only natural family planning should be allowed, the peti-
tioners are effectively going against the constitutional right to religious freedom, the same right they
invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the declaration
that the RH Law is unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on the entire citizenry.
201
With respect to the duty to refer, the respondents insist that the same does not violate the consti-
tutional guarantee of religious freedom, it being a carefully balanced compromise between the inter-
ests of the religious objector, on one hand, who is allowed to keep silent but is required to refer -and
that of the citizen who needs access to information and who has the right to expect that the health
care professional in front of her will act professionally. For the respondents, the concession given by
58
the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without interven-
tion of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on
the matter, they highlight the changing stand of the Catholic Church on contraception throughout the
years and note the general acceptance of the benefits of contraceptives by its followers in planning
their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of peo-
ple of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present Con-
stitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and hu-
mane society, and establish a Government that shall embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a regime of truth, justice, free-
dom, love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is em-
bodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of reli-
gious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect. Generally, the
1âwphi1
State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the
country.
Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a reli-
gious organization. Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exer-
cise thereof. The free exercise and enjoyment of religious profession and worship, without discrimina-
tion or preference, shall forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institu-
tion, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious groups."206
Essentially, it prohibits the establishment of a state religion and the use of public resources for the
support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for
its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
59
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They
have a single goal-to promote freedom of individual religious beliefs and practices. In simplest terms,
the free exercise clause prohibits government from inhibiting religious beliefs with penalties for reli-
gious beliefs and practice, while the establishment clause prohibits government from inhibiting reli-
gious belief with rewards for religious beliefs and practices. In other words, the two religion clauses
were intended to deny government the power to use either the carrot or the stick to influence indi-
vidual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in
most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief
is translated into external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same
case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommo-
dation of religion may be allowed, not to promote the government's favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. "The purpose of accommoda-
tion is to remove a burden on, or facilitate the exercise of, a person's or institution's religion."216
"What is sought under the theory of accommodation is not a declaration of unconstitutionality of a
facially neutral law, but an exemption from its application or its 'burdensome effect,' whether by the
legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218 Underlying the compelling state interest test is the notion that free exercise is a fundamen-
tal right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of permissibility of religious free-
dom is whether it violates the established institutions of society and law. The Victoriano case men-
tioned the "immediate and grave danger" test as well as the doctrine that a law of general applicabil-
ity may burden religious exercise provided the law is the least restrictive means to accomplish the
goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to
the " clear and present danger" test in the maiden case of A merican Bible Society. Not surprisingly,
all the cases which employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases on freedom of
expression. On the other hand, the Gerona and German cases set the rule that religious freedom will
not prevail over established institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the "grave and immediate danger"
test . Victoriano was the only case that employed the "compelling state interest" test, but as ex-
plained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and immediate danger" tests were appropriate as
speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from hav-
ing been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in
this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious
belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the interests of the state
in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not
any interest of the state would suffice to prevail over the right to religious freedom as this is a fun-
damental right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and
sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of the
Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos im-
plore the "aid of Almighty God in order to build a just and humane society and establish a govern-
ment." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion, especially the less pow-
erful ones until they are destroyed. In determining which shall prevail between the state's interest
and religious liberty, reasonableness shall be the guide. The "compelling state interest" serves the
purpose of revering religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work
on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship, ec-
60
clesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which are
outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be under-
stood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting reli-
gious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equal-
ity and nondiscrimination of these rights, the right to sustainable human development, the right to
health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics, cul-
tural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the de-
mands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical re-
search standards such as those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying marginalization: Provid-
ed, That the State shall also provide funding support to promote modern natural methods of family
planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and their
religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations,
civil society, faith-based organizations, the religious sector and communities is crucial to ensure that
reproductive health and population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to deter-
mine and achieve the desired number of children, spacing and timing of their children according to
their own family life aspirations, taking into account psychological preparedness, health status, socio-
cultural and economic concerns consistent with their religious convictions. [Section 4(v)] (Emphases
supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema. Consis-
tent with the principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to
a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and State
demands that one render unto Caesar the things that are Caesar's and unto God the things that are
God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects di-
verse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the govern-
ment succeeds in demonstrating a more compelling state interest in the accomplishment of an impor-
tant secular objective. Necessarily so, the plea of conscientious objectors for exemption from the RH
Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscien-
tious objector. One side coaxes him into obedience to the law and the abandonment of his religious
beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The scenario
is an illustration of the predicament of medical practitioners whose religious beliefs are incongruent
with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will, refers
a patient seeking information on modem reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has been compelled to perform an act against
his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the basis of
the free exercise clause is the respect for the inviolability of the human conscience.222
61
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compro-
mise because it makes pro-life health providers complicit in the performance of an act that they find
morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do direct-
ly. One may not be the principal, but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of
choice through informed consent, freedom of choice guarantees the liberty of the religious conscience
and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and
the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom
of health providers, whether public or private, should be accorded primacy. Accordingly, a conscien-
tious objector should be exempt from compliance with the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief and conviction, it would be violative of "the principle
of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in abortions.226
The Inner House stated "that if 'participation' were defined according to whether the person was
taking part 'directly' or ' indirectly' this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and oper-
ated by a religious group and health care service providers. Considering that Section 24 of the RH
Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of
the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the per-
formance of reproductive health procedures, the religious freedom of health care service providers
should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it
was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure compli-
ance. Without set consequences for either an active violation or mere inaction, a law tends to be
toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The pun-
ishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifical-
ly charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause
should be equally protective of the religious belief of public health officers. There is no perceptible
distinction why they should not be considered exempt from the mandates of the law. The protection
accorded to other conscientious objectors should equally apply to all medical practitioners without
distinction whether they belong to the public or private sector. After all, the freedom to believe is
intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off
even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such concept
then are freedom of religion, freedom of speech, of the press, assembly and petition, and freedom of
association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law itself
but also because it is violative of the equal protection clause in the Constitution. Quoting respondent
Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious convic-
tions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are specifi-
62
cally charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain consci-
entious objectors in their choice of services to render; and 2] discharge the burden of proof that the
obligatory character of the law is the least intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious convic-
tions. During the oral arguments, the OSG maintained the same silence and evasion. The Transcripts
of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his reli-
gious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious free-
dom. If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not
the mother decides to adopt or use the information, product, method or supply given to her or
whether she even decides to become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the moment a patient seeks consul-
tation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses, endan-
gering paramount interests" which could limit or override a person's fundamental right to religious
freedom. Also, the respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive means.234 Other than the
assertion that the act of referring would only be momentary, considering that the act of referral by a
conscientious objector is the very action being contested as violative of religious freedom, it be-
hooves the respondents to demonstrate that no other means can be undertaken by the State to
achieve its objective without violating the rights of the conscientious objector. The health concerns
of women may still be addressed by other practitioners who may perform reproductive health-related
procedures with open willingness and motivation. Suffice it to say, a person who is forced to perform
an act in utter reluctance deserves the protection of the Court as the last vanguard of constitutional
freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right
to health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Con-
traceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, other-
wise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health ser-
vices and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and pro-
grams covering all stages of a woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive health services, due re-
spect shall be accorded to women's religious convictions, the rights of the spouses to found a family
in accordance with their religious convictions, and the demands of responsible parenthood, and the
right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without prejudice
to the primary right and duty of parents to educate their children;
63
(5) Prevention and management of reproductive tract infections, including sexually transmitted dis-
eases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and
other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors shall
be provided with comprehensive health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and
medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In addi-
tion, healthy lifestyle activities are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the develop-
ment of moral character and the right of children to be brought up in an atmosphere of morality and
rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino mater-
nal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law
at that time. Despite such revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care procedures
if doing it would contravene their religious beliefs, an exception must be made in life-threatening
cases that require the performance of emergency procedures. In these situations, the right to life of
the mother should be given preference, considering that a referral by a medical practitioner would
amount to a denial of service, resulting to unnecessarily placing the life of a mother in grave danger.
Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause
that we are objecting on grounds of violation of freedom of religion does not contemplate an emer-
gency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between
the life of the child and the life of the mother, the doctor is morally obliged always to try to save
both lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above princi-
ples are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by
the OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information
they find unacceptable, and retain the freedom to decide on matters of family life without the inter-
vention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the
Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity and
fosters animosity in the family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands
of responsible parenthood;
64
The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father
from participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following in-
stances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and the
wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section 3,
their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute au-
thority to the spouse who would undergo a procedure, and barring the other spouse from participat-
ing in the decision would drive a wedge between the husband and wife, possibly result in bitter ani-
mosity, and endanger the marriage and the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State to protect marriage as an inviolable social
institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as one
cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right. Unless
it prejudices the State, which has not shown any compelling interest, the State should see to it that
they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their children.
Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared responsibility be-
tween parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional
mandate to protect and strengthen the family by giving to only one spouse the absolute authority to
decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the Constitu-
tion. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where the
Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully deserving of constitu-
tional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v. Connecticut,245
where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older
than our school system. Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal
offense on the ground of its amounting to an unconstitutional invasion of the right to privacy of
married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples. Justice
Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance. Various guarantees create
zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be under-
going a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services, whether natural or arti-
ficial: Provided, That minors will not be allowed access to modern methods of family planning without
written consent from their parents or guardian/s except when the minor is already a parent or has
had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent
or has had a miscarriage, the parents are excluded from the decision making process of the minor
with regard to family planning. Even if she is not yet emancipated, the parental authority is already
cut off just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to provid-
ing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family. It
does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government."247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]
65
To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the viola-
tion of one's privacy with respect to his family. It would be dismissive of the unique and strongly-held
Filipino tradition of maintaining close family ties and violative of the recognition that the State affords
couples entering into the special contract of marriage to as one unit in forming the foundation of the
family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must
be made. There must be a differentiation between access to information about family planning ser-
vices, on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to en-
able a person to make informed decisions is essential in the protection and maintenance of ones'
health, access to such information with respect to reproductive health must be allowed. In this situa-
tion, the fear that parents might be deprived of their parental control is unfounded because they are
not prohibited to exercise parental guidance and control over their minor child and assist her in decid-
ing whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By effec-
tively limiting the requirement of parental consent to "only in elective surgical procedures," it denies
the parents their right of parental authority in cases where what is involved are "non-surgical proce-
dures." Save for the two exceptions discussed above, and in the case of an abused child as provided
in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their constitution-
al right of parental authority. To deny them of this right would be an affront to the constitutional
mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teach-
ing of Age-and Development-Appropriate Reproductive Health Education under threat of fine and/or
imprisonment violates the principle of academic freedom . According to the petitioners, these provi-
sions effectively force educational institutions to teach reproductive health education even if they
believe that the same is not suitable to be taught to their students.250 Citing various studies con-
ducted in the United States and statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown
of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is pre-
mature because the Department of Education, Culture and Sports has yet to formulate a curriculum
on age-appropriate reproductive health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and whether they will contradict
the religious beliefs of the petitioners and validate their apprehensions. Thus, considering the prema-
ture nature of this particular issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State.
252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral devel-
opment of the youth. Indeed, the Constitution makes mention of the importance of developing the
youth and their important role in nation building.253 Considering that Section 14 provides not only for
the age-appropriate-reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and violence against women
and children and other forms of gender based violence and teen pregnancy; physical, social and emo-
tional changes in adolescents; women's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR
and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior,
gender sensitivity and physical and emotional changes among adolescents - the Court finds that the
legal mandate provided under the assailed provision supplements, rather than supplants, the rights
and duties of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program
shall be developed in conjunction with parent-teacher-community associations, school officials and
other interest groups, it could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the petitioners' contention that
Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation
in the reproductive health education program provided under Section 14 of the RH Law on the
ground that the same violates their religious beliefs, the Court reserves its judgment should an actual
case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
66
service provider." They argue that confusion further results since Section 7 only makes reference to a
"private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It is
unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord per-
sons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with refer-
ence to the context, that is, every part of it must be construed together with the other parts and
kept subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly li-
censed and accredited and devoted primarily to the maintenance and operation of facilities for health
promotion, disease prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care; (2)
public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or (4) barangay health worker who has under-
gone training programs under any accredited government and NGO and who voluntarily renders pri-
marily health care services in the community after having been accredited to function as such by the
local health board in accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of
"private health care service provider," should not be a cause of confusion for the obvious reason that
they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health procedures.
Clearly, subject to the qualifications and exemptions earlier discussed, the right to be exempt from
being obligated to render reproductive health service and modem family planning methods, necessarily
includes exemption from being obligated to give reproductive health information and to render repro-
ductive health procedures. The terms "service" and "methods" are broad enough to include the pro-
viding of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from ex-
pressing their own personal opinions regarding the programs and services on reproductive health, their
right must be tempered with the need to provide public health and safety. The public deserves no
less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution
as it discriminates against the poor because it makes them the primary target of the government
program that promotes contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would effectively reduce the num-
ber of the poor. Their bases are the various provisions in the RH Law dealing with the poor, especially
those mentioned in the guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to provide for a more spe-
cific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
67
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive depart-
ments, and extend to all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid classi-
fication. Indeed, the equal protection clause permits classification. Such classification, however, to be
valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to exist-
ing conditions only; and (4) It applies equally to all members of the same class. "Superficial differ-
ences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all per-
sons who naturally belong to the class. "The classification will be regarded as invalid if all the mem-
bers of the class are not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the sense that the mem-
bers of the class should possess the same characteristics in equal degree. Substantial similarity will
suffice; and as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other members, as long
as that class is substantially distinguishable from all others, does not justify the non-application of
the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. It must not leave out or "underin-
clude" those that should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's reproductive health care pro-
gram is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII
of the Constitution which recognizes the distinct necessity to address the needs of the underprivi-
leged by providing that they be given priority in addressing the health development of the people.
Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the con-
tention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section
3(1) explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in
a truly humane way, a deeper look into its provisions shows that what the law seeks to do is to
simply provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because there
is a need to recognize the academic freedom of private educational institutions especially with re-
spect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation requir-
ing private and non-government health care service providers to render forty-eight (48) hours of pro
bono reproductive health services, actually amounts to involuntary servitude because it requires med-
ical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right alto-
gether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-accreditation with PhilHealth,
no penalty is imposed should they choose to do otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to choose which kind of health service they wish to
provide, when, where and how to provide it or whether to provide it all. Clearly, therefore, no com-
pulsion, force or threat is made upon them to render pro bono service against their will. While the
rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does
68
not consider the same to be an unreasonable burden, but rather, a necessary incentive imposed by
Congress in the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that consci-
entious objectors are exempt from this provision as long as their religious beliefs and convictions do
not allow them to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only govern-
ment entity empowered to render such services and highly proficient to do so. It should be under-
stood that health services and methods fall under the gamut of terms that are associated with what
is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be
under the Office of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued
pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards,
and to recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance
of appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments
and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropri-
ate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers,
consumers, and non-consumer users of health products to report to the FDA any incident that rea-
sonably indicates that said product has caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products,
whether or not registered with the FDA Provided, That for registered health products, the cease and
desist order is valid for thirty (30) days and may be extended for sixty ( 60) days only after due
process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to
have caused death, serious illness or serious injury to a consumer or patient, or is found to be immi-
nently injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to en-
able the agency to carry out the mandates of the law. Being the country's premiere and sole agency
that ensures the safety of food and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the principle of necessary implica-
tion, the mandate by Congress to the FDA to ensure public health and safety by permitting only food
and medicines that are safe includes "service" and "methods." From the declared policy of the RH
Law, it is clear that Congress intended that the public be given only those medicines that are proven
medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted delegation was explained in Echa-
garay v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of soci-
ety has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become neces-
sary. To many of the problems attendant upon present day undertakings, the legislature may not
have the competence, let alone the interest and the time, to provide the required direct and effica-
cious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers
and discharging the duties and functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices devolved to them pursuant to this Code.
Local government units shall likewise exercise such other powers and discharge such other functions
and responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of
the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities
that have already been devolved upon them from the national agencies on the aspect of providing for
basic services and facilities in their respective jurisdictions, paragraph (c) of the same provision pro-
vides a categorical exception of cases involving nationally-funded projects, facilities, programs and
services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects
and other facilities, programs and services funded by the National Government under the annual Gen-
eral Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially
funded from foreign sources, are not covered under this Section, except in those cases where the
local government unit concerned is duly designated as the implementing agency for such projects,
facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
69
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the availability
of these services mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the autonomy enjoyed by the
local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections
6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah to
justify the exemption of the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied upon by the peti-
tioners simply delineate the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to enact legislation that
would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et
imperio in the relationship between the national and the regional governments.274 Except for the ex-
press and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actu-
al law of the past or present.277 Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by
the petitioners, it was explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily avail-
able to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their pro-
grams, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would happen
if the country would be weighed down by an ageing population and the fewer younger generation
would not be able to support them? This would be the situation when our total fertility rate would
go down below the replacement level of two (2) children per woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it. None-
theless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what
the law is as enacted by the lawmaking body. That is not the same as saying what the law should be
or what is the correct rule in a given set of circumstances. It is not the province of the judiciary to
look into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is
it the business of this Tribunal to remedy every unjust situation that may arise from the application
of a particular law. It is for the legislature to enact remedial legislation if that would be necessary in
the premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out
the delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must con-
fine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.281
70
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning method
should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354
as NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared UN-
CONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group
to refer patients, not in an emergency or life-threatening case, as defined under Republic Act No.
8344, to another health facility which is conveniently accessible; and b) allow minor-parents or minors
who have suffered a miscarriage access to modem methods of family planning without written con-
sent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any healthcare service provider who fails and or refuses to disseminate infor-
mation regarding programs and services on reproductive health regardless of his or her religious be-
liefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the re-
quirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not
in an emergency or life-threatening case, as defined under Republic Act No. 8344, to another health
care service provider within the same facility or one which is conveniently accessible regardless of his
or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any public officer who refuses to support reproductive health programs or shall
do any act that hinders the full implementation of a reproductive health program, regardless of his or
her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contraven-
ing Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein
declared as constitutional.
SO ORDERED.
U.S. Supreme Court
Meyer v. Nebraska, 262 U.S. 390 (1923)
Meyer v. State of Nebraska
No. 325
Argued February 23, 1923
Decided June 4, 1923
262 U.S. 390
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA
Syllabus
A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public
school, of any modern language, other than English, to any child who has not attained and success-
fully
Page 262 U. S. 391
passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and exceeds
the power of the State. P. 262 U. S. 399.
So held where the statute was applied in punishment of an instructor who taught reading in German,
to a child of ten years, in a parochial school.
107 Neb. 657, reversed.
ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a
statute against teaching of foreign languages to young children in schools.
Page 262 U. S. 396
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an
information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he
unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten
years, who had not attained
Page 262 U. S. 397
and successfully passed the eighth grade. The information is based upon "An act relating to the
teaching of foreign languages in the State of Nebraska," approved April 9, 1919, which follows [Laws
1919, c. 249.]:
"Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or
public school, teach any subject to any person in any language other than the English language."
"Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil
shall have attained and successfully passed the eighth grade as evidenced by a certificate of gradua-
tion issued by the county superintendent of the county in which the child resides."
"Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a mis-
demeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25),
nor more than one hundred dollars ($100) or be confined in the county jail for any period not ex-
ceeding thirty days for each offense."
"Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and
approval."
71
The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the
offense charged and established was "the direct and intentional teaching of the German language as
a distinct subject to a child who had not passed the eighth grade," in the parochial school maintained
by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it
held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid
exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons
advanced to support the conclusion.
"The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permit-
ting foreigners,
Page 262 U. S. 398
who had taken residence in this country, to rear and educate their children in the language of their
native land. The result of that condition was found to be inimical to our own safety. To allow the
children of foreigners, who had emigrated here, to be taught from early childhood the language of
the country of their parents was to rear them with that language as their mother tongue. It was to
educate them so that they must always think in that language, and, as a consequence, naturally
inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute,
therefore, was intended not only to require that the education of all children be conducted in the
English language, but that, until they had grown into that language and until it had become a part of
them, they should not in the schools be taught any other language. The obvious purpose of this
statute was that the English language should be and become the mother tongue of all children reared
in this state. The enactment of such a statute comes reasonably within the police power of the
state. Pohl v. State, 132 N.E. (Ohio) 20; State v. Bartels, 181 N.W. (Ia.) 508."
"It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the
state and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and pre-
vents them, without reason, from having their children taught foreign languages in school. That argu-
ment is not well taken, for it assumes that every citizen finds himself restrained by the statute. The
hours which a child is able to devote to study in the confinement of school are limited. It must have
ample time for exercise or play. Its daily capacity for learning is comparatively small. A selection of
subjects for its education, therefore, from among the many that might be taught, is obviously neces-
sary. The legislature no doubt had in mind the practical operation of the law. The law affects few
citizens, except those of foreign lineage.
Page 262 U. S. 399
Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of
importance to teach their children foreign languages before such children have reached the eighth
grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction
upon the citizens generally, which, it appears, was a restriction of no real consequence."
The problem for our determination is whether the statute, as construed and applied, unreasonably
infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State
shall . . . deprive any person of life, liberty, or property, without due process of law."
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term
has received much consideration and some of the included things have been definitely stated. With-
out doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates of his own con-
science, and generally to enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v.
Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S.
313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jer-
sey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich,
239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357;
Truax v. Corrigan, 257 U. S. 312; Adkins v. Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge
Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered
Page 262 U. S. 400
with, under the guise of protecting the public interest, by legislative action which is arbitrary or with-
out reasonable relation to some purpose within the competency of the State to effect. Determination
by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is
subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137.
The American people have always regarded education and acquisition of knowledge as matters of
supreme importance which should be diligently promoted. The Ordinance of 1787 declares,
"Religion, morality, and knowledge being necessary to good government and the happiness of
mankind, schools and the means of education shall forever be encouraged."
Corresponding to the right of control, it is the natural duty of the parent to give his children educa-
tion suitable to their station in life, and nearly all the States, including Nebraska, enforce this obliga-
tion by compulsory laws.
Practically, education of the young is only possible in schools conducted by especially qualified per-
sons who devote themselves thereto. The calling always has been regarded as useful and honorable,
essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be
regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff
in error taught this language in school as part of his occupation. His right thus to teach and the right
of parents to engage him so to instruct their children, we think, are within the liberty of the Amend-
ment.
The challenged statute forbids the teaching in school of any subject except in English; also the teach-
ing of any other language until the pupil has attained and successfully passed the eighth grade, which
is not usually accomplished before the age of twelve. The Supreme Court of the State has held that
"the so-called ancient or dead languages" are not "within the spirit or the purpose of
Page 262 U. S. 401
the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek,
Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are
within the ban. Evidently the legislature has attempted materially to interfere with the calling of mod-
ern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of
parents to control the education of their own.
It is said the purpose of the legislation was to promote civic development by inhibiting training and
education of the immature in foreign tongues and ideals before they could learn English and acquire
American ideals, and "that the English language should be and become the mother tongue of all chil-
dren reared in this State." It is also affirmed that the foreign born population is very large, that cer-
tain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere,
and that the children are thereby hindered from becoming citizens of the most useful type, and the
public safety is imperiled.
72
That the State may do much, go very far, indeed, in order to improve the quality of its citizens,
physically, mentally and morally, is clear; but the individual has certain fundamental rights which must
be respected. The protection of the Constitution extends to all, to those who speak other languages
as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all
had ready understanding of our ordinary speech, but this cannot be coerced by methods which con-
flict with the Constitution -- a desirable end cannot be promoted by prohibited means.
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
"That the wives of our guardians are to be common, and their children are to be common, and no
parent is to know his own child,
Page 262 U. S. 402
nor any child his parent. . . . The proper officers will take the offspring of the good parents to the
pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but
the offspring of the inferior, or of the better when they chance to be deformed, will be put away in
some mysterious, unknown place, as they should be."
In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven
into barracks and intrusted their subsequent education and training to official guardians. Although
such measures have been deliberately approved by men of great genius, their ideas touching the
relation between individual and State were wholly different from those upon which our institutions
rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people
of a State without doing violence to both letter and spirit of the Constitution.
The desire of the legislature to foster a homogeneous people with American ideals prepared readily to
understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during
the late war and aversion toward every characteristic of truculent adversaries were certainly enough
to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power
of the State and conflict with rights assured to plaintiff in error. The interference is plain enough, and
no adequate reason therefor in time of peace and domestic tranquility has been shown.
The power of the State to compel attendance at some school and to make reasonable regulations for
all schools, including a requirement that they shall give instructions in English, is not questioned. Nor
has challenge been made of the State's power to prescribe a curriculum for institutions which it sup-
ports. Those matters are not within the present controversy. Our concern is with the prohibition
approved by the Supreme Court. Adams v.
Page 262 U. S. 403
Tanner, supra, p. 244 U. S. 594, pointed out that mere abuse incident to an occupation ordinarily
useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency
has arisen which renders knowledge by a child of some language other than English so clearly harmful
as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are
constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any
end within the competency of the State.
As the statute undertakes to interfere only with teaching which involves a modern language, leaving
complete freedom as to other matters, there seems no adequate foundation for the suggestion that
the purpose was to protect the child's health by limiting his mental activities. It is well known that
proficiency in a foreign language seldom comes to one not instructed at an early age, and experience
shows that this is not injurious to the health, morals or understanding of the ordinary child.
The judgment of the court below must be reversed, and the cause remanded for further proceedings
not inconsistent with this opinion.
Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR. JUSTICE SUTHER-
LAND, in the next case, at p. 262 U. S. 412, infra.]
U.S. Supreme Court
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
Pierce v. Society of Sisters
Nos. 583, 584
Argued March 16, 17, 1925
Decided June 1, 1925
268 U.S. 510
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF OREGON
Syllabus
1. The fundamental theory of liberty upon which all governments of this Union rest excludes any
general power of the State to standardize its children by forcing them to accept instruction from
public teachers only. P. 268 U. S. 535.
2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, re-
quires every parent, guardian or other person having control of a child between the ages of eight and
sixteen years to send him to the public school in the district where he resides, for the period during
which the school is held for the current year, is an unreasonable interference with the liberty of the
parents and guardians to direct the upbringing of the children, and in that respect violates the Four-
teenth Amendment. P. 268 U. S. 534.
3. In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed
by the Fourteenth Amendment, and, in general, no person in any business has such an interest in
possible customers as to enable him to restrain exercise of proper power by the State upon the
ground that he will be deprived of patronage;
4. But where corporations owning and conducting schools are threatened with destruction of their
business and property through the improper and unconstitutional compulsion exercised by this statute
upon parents and guardians, their interest is direct and immediate, and entitles them to protection by
injunction. Truax v. Raich, 239 U. S. 33. P. 268 U. S. 535.
5. The Act, being intended to have general application, cannot be construed in its application to such
corporations as an exercise of power to amend their charters. Berea College v. Kentucky, 211 U. S.
45. P. 268 U. S. 535.
6. Where the injury threatened by an unconstitutional statute is present and real before the statute
is to be effective, and will
Page 268 U. S. 511
become irreparable if relief be postponed to that time, a suit to restrain future enforcement of the
statute is not premature. P. 268 U. S. 536.
296 Fed. 928, affirmed.
APPEALS from decrees of the District Court granting preliminary injunctions restraining the Governor,
and other officials, of the State of Oregon from threatening or attempting to enforce an amendment
73
to the school law -- an initiative measure adopted by the people November 7, 1922, to become
effective in 1926 -- requiring parents and others having control of young children to send them to
the primary schools of the State. The plaintiffs were two Oregon corporations owning and conducting
schools.
Page 268 U. S. 529
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
These appeals are from decrees, based upon undenied allegations, which granted preliminary orders
restraining
Page 268 U. S. 530
appellants from threatening or attempting to enforce the Compulsory Education Act * adopted No-
vember 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. Jud.Code,
§ 266. They present the same points of law; there are no controverted questions of fact. Rights said
to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for
their protection.
The challenged Act, effective September 1, 1926, requires every parent, guardian or other person
having control or charge or custody of a child between eight and sixteen years to send him "to a
public school for the period of time a public school shall be held during the current year" in the dis-
trict where the child resides, and failure so to do is declared a misdemeanor. There are
Page 268 U. S. 531
exemptions not specially important here -- for children who are not normal, or who have completed
he eighth grade, or who reside at considerable distances from any public school, or whose parents or
guardians hold special permits from the County Superintendent. The manifest purpose is to compel
general attendance at public schools by normal children, between eight and sixteen, who have not
completed the eighth grade. And without doubt enforcement of the statute would seriously impair,
perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their
property.
Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for
orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire
necessary real and personal
Page 268 U. S. 532
property. It has long devoted its property and effort to the secular and religious education and care
of children, and has acquired the valuable good will of many parents and guardians. It conducts inter-
dependent primary and high schools and junior colleges, and maintains orphanages for the custody
and control of children between eight and sixteen. In its primary schools, many children between
those ages are taught the subjects usually pursued in Oregon public schools during the first eight
years. Systematic religious instruction and moral training according to the tenets of the Roman
Catholic Church are also regularly provided. All courses of study, both temporal and religious, contem-
plate continuity of training under appellee's charge; the primary schools are essential to the system
and the most profitable. It owns valuable buildings, especially constructed and equipped for school
purposes. The business is remunerative -- the annual income from primary schools exceeds thirty
thousand dollars -- and the successful conduct of this requires long-time contracts with teachers and
parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools
of children who would otherwise continue, and their income has steadily declined. The appellants,
public officers, have proclaimed their purpose strictly to enforce the statute.
After setting out the above facts, the Society's bill alleges that the enactment conflicts with the
right of parents to choose schools where their children will receive appropriate mental and religious
training, the right of the child to influence the parents' choice of a school, the right of schools and
teachers therein to engage in a useful business or profession, and is accordingly repugnant to the
Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corpora-
tion's business and property will suffer irreparable injury.
Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon,
engaged
Page 268 U. S. 533
in owning, operating and conducting for profit an elementary, college preparatory and military training
school for boys between the ages of five and twenty-one years. The average attendance is one hun-
dred, and the annual fees received for each student amount to some eight hundred dollars. The ele-
mentary department is divided into eight grades, as in the public schools; the college preparatory
department has four grades, similar to those of the public high schools; the courses of study conform
to the requirements of the State Board of Education. Military instruction and training are also given,
under the supervision of an Army officer. It owns considerable real and personal property, some use-
ful only for school purposes. The business and incident good will are very valuable. In order to con-
duct its affairs, long time contracts must be made for supplies, equipment, teachers and pupils. Ap-
pellants, law officers of the State and County, have publicly announced that the Act of November 7,
1922, is valid, and have declared their intention to enforce it. By reason of the statute and threat of
enforcement, appellee's business is being destroyed and its property depreciated; parents and
guardians are refusing to make contracts for the future instruction of their sons, and some are being
withdrawn.
The Academy's bill states the foregoing facts and then alleges that the challenged Act contravenes
the corporation's rights guaranteed by the Fourteenth Amendment and that, unless appellants are
restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The
prayer is for an appropriate injunction.
No answer was interposed in either cause, and, after proper notices, they were heard by three judges
(Jud.Code § 266) on motions for preliminary injunctions upon the specifically alleged facts. The court
ruled that the Fourteenth Amendment guaranteed appellees against the
Page 268 U. S. 534
deprivation of their property without due process of law consequent upon the unlawful interference
by appellants with the free choice of patrons, present and prospective. It declared the right to con-
duct schools was property, and that parents and guardians, as a part of their liberty, might direct the
education of children by selecting reputable teachers and places. Also, that these schools were not
unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully de-
prive them of patronage, and thereby destroy their owners' business and property. Finally, that the
threats to enforce the Act would continue to cause irreparable injury, and the suits were not prema-
ture.
No question is raised concerning the power of the State reasonably to regulate all schools, to in-
spect, supervise and examine them, their teachers and pupils; to require that all children of proper
age attend some school, that teachers shall be of good moral character and patriotic disposition, that
74
certain studies plainly essential to good citizenship must be taught, and that nothing be taught which
is manifestly inimical to the public welfare.
The inevitable practical result of enforcing the Act under consideration would be destruction of ap-
pellees' primary schools, and perhaps all other private primary schools for normal children within the
State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long
regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that
they have failed to discharge their obligations to patrons, students or the State. And there are no
peculiar circumstances or present emergencies which demand extraordinary measures relative to pri-
mary education.
Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of
1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and
education of children
Page 268 U. S. 535
under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not
be abridged by legislation which has no reasonable relation to some purpose within the competency
of the State. The fundamental theory of liberty upon which all governments in this Union repose
excludes any general power of the State to standardize its children by forcing them to accept in-
struction from public teachers only. The child is not the mere creature of the State; those who nur-
ture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare
him for additional obligations.
Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty
which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwest-
ern Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Association v. Greenberg, 204
U. S. 359, 204 U. S. 363. But they have business and property for which they claim protection.
These are threatened with destruction through the unwarranted compulsion which appellants are exer-
cising over present and prospective patrons of their schools. And this court has gone very far to
protect against loss threatened by such action. Truax v. Raich, 239 U. S. 33; Truax v. Corrigan, 257
U. S. 312; Terrace v. Thompson, 263 U. S. 197.
The courts of the State have not construed the Act, and we must determine its meaning for our-
selves. Evidently it was expected to have general application, and cannot be construed as though
merely intended to amend the charters of certain private corporations, as in Berea College v. Ken-
tucky, 211 U. S. 45. No argument in favor of such view has been advanced.
Generally it is entirely true, as urged by counsel, that no person in any business has such an interest
in possible customers as to enable him to restrain exercise of proper power of the State upon the
ground that he will be deprived
Page 268 U. S. 536
of patronage. But the injunctions here sought are not against the exercise of any proper power.
Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons
and the consequent destruction of their business and property. Their interest is clear and immediate,
within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and
many other cases where injunctions have issued to protect business enterprises against interference
with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229;
Duplex Printing Press Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City Central
Trades Council, 257 U. S. 184; Nebraska District v. McKelvie, 262 U. S. 404; Truax v. Corrigan, supra,
and cases there cited.
The suits were not premature. The injury to appellees was present and very real, not a mere possibili-
ty in the remote future. If no relief had been possible prior to the effective date of the Act, the
injury would have become irreparable. Prevention of impending injury by unlawful action is a well rec-
ognized function of courts of equity. The decrees below are
Affirmed.
*
"Be it Enacted by the People of the State of Oregon:"
"Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as
follows:"
"Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent, guardian or other
person in the State of Oregon, having control or charge or custody of a child under the age of six-
teen years and of the age of eight years or over at the commencement of a term of public school of
the district in which said child resides, who shall fail or neglect or refuse to send such child to a
public school for the period of time a public school shall be held during the current year in said dis-
trict, shall be guilty of a misdemeanor and each day's failure to send such child to a public school
shall constitute a separate offense; provided, that, in the following cases, children shall not be re-
quired to attend public schools:"
"(a) Children Physically Unable -- Any child who is abnormal, subnormal or physically unable to attend
school."
"(b) Children Who Have Completed the Eighth Grade -- Any child who has completed the eighth
grade, in accordance with the provisions of the state course of study."
"(c) Distance from school -- Children between the ages of eight and ten years, inclusive, whose place
of residence is more than one and one-half miles, and children over ten years of age whose place of
residence is more than three miles, by the nearest traveled road, from public school; provided, how-
ever, that, if transportation to and from school is furnished by the school district, this exemption
shall not apply."
"(d) Private Instruction -- Any child who is being taught for a like period of time by the parent or
private teacher such subjects as are usually taught in the first eight years in the public school; but
before such child can be taught by a parent or a private teacher, such parent or private teacher
must receive written permission from the county superintendent, and such permission shall not ex-
tend longer than the end of the current school year. Such child must report to the county school
superintendent or some person designated by him at least once every three months and take an
examination in the work covered. If, after such examination, the county superintendent shall deter-
mine that such child is not being properly taught, then the county superintendent shall order the
parent, guardian or other person, to send such child to the public school the remainder of the school
year."
"If any parent, guardian or other person having control or charge or custody of any child between the
ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be
guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5,
nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty
days, or by both such fine and imprisonment in the discretion of the court."
75
"This Act shall take effect and be and remain in force from and after the first day of September,
1926.”
New York v. Ferber
No. 81-55
Argued April 27, 1982
Decided July 2, 1982
458 U.S. 747
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
Syllabus
A New York statute prohibits persons from knowingly promoting a sexual performance by a child
under the age of 16 by distributing material which depicts such a performance. The statute defines
"sexual performance" as any performance that includes sexual conduct by such a child, and "sexual
conduct" is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexu-
al bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent
bookstore proprietor was convicted under the statute for selling films depicting young boys mastur-
bating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of
Appeals reversed, holding that the statute violated the First Amendment as being both underinclusive
and overbroad. The court reasoned that, in light of the explicit inclusion of an obscenity standard in a
companion statute banning the knowing dissemination of similarly defined material, the statute in
question could not be construed to include an obscenity standard, and therefore would prohibit the
promotion of materials traditionally entitled to protection under the First Amendment.
Held: As applied to respondent and others who distribute similar material, the statute in question
does not violate the First Amendment as applied to the States through the Fourteenth Amendment.
Pp. 458 U. S. 753-774.
(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children
for the following reasons: (1) the legislative judgment that the use of children as subjects of porno-
graphic materials is harmful to the physiological, emotional, and mental health of the child easily
passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U. S. 15, for
determining what is legally obscene is not a satisfactory solution to the child pornography problem;
(3) the advertising and selling of child pornography provide an economic motive for, and are thus an
integral part of, the production of such materials, an activity illegal throughout the Nation; (4) the
value of permitting live performances and photographic reproductions of children engaged in lewd
exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornog-
raphy as a category of material outside the First Amendment's protection is not incompatible with
this Court's decisions dealing with what speech is unprotected. When a definable class of material,
such as that covered by the New
Page 458 U. S. 748
York statute, bears so heavily and pervasively on the welfare of children engaged in its production,
the balance of competing interests is clearly struck, and it is permissible to consider these materials
as without the First Amendment's protection. Pp. 458 U. S. 756-764.
(b) The New York statute describes a category of material the production and distribution of which is
not entitled to First Amendment protection. Accordingly, there is nothing unconstitutionally "underin-
clusive" about the statute, and the State is not barred by the First Amendment from prohibiting the
distribution of such unprotected materials produced outside the State. Pp. 458 U. S. 764-766.
(c) Nor is the New York statute unconstitutionally overbroad as forbidding the distribution of material
with serious literary, scientific, or educational value. The substantial overbreadth rule of Broadrick v.
Oklahoma, 413 U. S. 601, applies. This is the paradigmatic case of a state statute whose legitimate
reach dwarfs its arguably impermissible applications.
"[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situa-
tions to which [the statute's] sanctions, assertedly, may not be applied."
Broadrick v. Oklahoma, supra, at 413 U. S. 615-616. Pp. 458 U. S. 766-774.
52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and
O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 458 U. S. 774. BRENNAN, J.,
filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 458 U. S. 775.
BLACKMUN, J., concurred in the result. STEVENS, J., filed an opinion concurring in the judgment, post,
p. 458 U. S. 777.
Page 458 U. S. 749
JUSTICE WHITE delivered the opinion of the Court.
At issue in this case is the constitutionality of a New York criminal statute which prohibits persons
from knowingly promoting sexual performances by children under the age of 16 by distributing mater-
ial which depicts such performances.
I
In recent years, the exploitive use of children in the production of pornography has become a serious
national problem. [Footnote 1] The Federal Government and 47 States have sought to combat the
problem with statutes specifically directed at the production of child pornography. At least half of
such statutes do not require that the materials produced be legally obscene. Thirty-five States and
the United States Congress have also passed legislation prohibiting the distribution of such materials;
20 States prohibit the distribution of material depicting children engaged in sexual conduct without
requiring that the material be legally obscene. [Footnote 2]
Page 458 U. S. 750
New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law.
N.Y.Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of
a child in a sexual performance:
"A person is guilty of the use of a child in a sexual performance if knowing the character and con-
tent thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a
sexual performance or being a parent, legal guardian or custodian of such child,
Page 458 U. S. 751
he consents to the participation by such child in a sexual performance."
A "[s]exual performance" is defined as "any performance or part thereof which includes sexual con-
duct by a child less than sixteen years of age." § 263.00(1). "Sexual conduct" is in turn defined in §
263.00(3):
"'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals."
76
A performance is defined as "any play, motion picture, photograph or dance" or "any other visual
representation exhibited before an audience." § 263.00(4).
At issue in this case is § 263.15, defining a class D felony: [Footnote 3]
"A person is guilty of promoting a sexual performance by a child when, knowing the character and
content thereof, he produces, directs or promotes any performance which includes sexual conduct by
a child less than sixteen years of age."
To "promote" is also defined:
"'Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer,
transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree
to do the same."
§ 263.00(5). A companion provision bans only the knowing dissemination of obscene material. §
263.10.
This case arose when Paul Ferber, the proprietor of a Manhattan
Page 458 U. S. 752
bookstore specializing in sexually oriented products, sold two films to an undercover police officer.
The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted
on two counts of violating § 263.10 and two counts of violating § 263.15, the two New York laws
controlling dissemination of child pornography. [Footnote 4] After a jury trial, Ferber was acquitted of
the two counts of promoting an obscene sexual performance, but found guilty of the two counts
under § 263.15, which did not require proof that the films were obscene. Ferber's convictions were
affirmed without opinion by the Appellate Division of the New York State Supreme Court. 74 App.Div.
2d 558, 424 N.Y.S.2d 967 (1980).
The New York Court of Appeals reversed, holding that § 263.15 violated the First Amendment. 52
N.Y.2d 674, 422 N.E.2d 523 (1981). The court began by noting that, in light of § 263.10's explicit
inclusion of an obscenity standard, § 263.15 could not be construed to include such a standard.
Therefore,
"the statute would . . . prohibit the promotion of materials which are traditionally entitled to consti-
tutional protection from government interference under the First Amendment."
52 N.Y.2d at 678, 422 N.E.2d at 525. Although the court recognized the State's "legitimate interest
in protecting the welfare of minors" and noted that this "interest may transcend First Amendment
concerns," id. at 679, 422 N.E.2d at 525-526, it nevertheless found two fatal defects in the New
York statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of
children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous
activity. It was also overbroad because it prohibited the distribution of materials produced outside the
State, as well as materials, such as medical books and educational sources, which
Page 458 U. S. 753
"deal with adolescent sex in a realistic but nonobscene manner." 52 N.Y.2d at 681, 422 N.E.2d at
526. Two judges dissented. We granted the State's petition for certiorari, 454 U.S. 1052 (1981),
presenting the single question:
"To prevent the abuse of children who are made to engage in sexual conduct for commercial purpos-
es, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemi-
nation of material which shows children engaged in sexual conduct, regardless of whether such mater-
ial is obscene?"
II
The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in §
263.10, which follows the guidelines enunciated in Miller v. California, 413 U. S. 15 (1973), [Footnote
5] constitutes the appropriate line dividing protected from unprotected expression by which to mea-
sure a regulation directed at child pornography. It was on the premise that "nonobscene adolescent
sex" could not be singled out for special treatment that the court found § 263.15 "strikingly under-
inclusive." Moreover, the assumption that the constitutionally permissible regulation of pornography
could not be more extensive with respect to the distribution of material depicting children may also
have led the court to conclude that a narrowing construction of § 263.15 was unavailable.
The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however,
constitutes our first examination of a statute directed at and limited to depictions of sexual activity
involving children. We believe our inquiry should begin with the question of whether a State has
somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of geni-
talia by children.
Page 458 U. S. 754
A
In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court laid the foundation for the excision
of obscenity from the realm of constitutionally protected expression:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem. These include the lewd and
obscene. . . . It has been well observed that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality."
Id. at 315 U. S. 571-572 (footnotes omitted).
Embracing this judgment, the Court squarely held in Roth v. United States, 354 U. S. 476 (1957),
that "obscenity is not within the area of constitutionally protected speech or press." Id. at 354 U. S.
485. The Court recognized that "rejection of obscenity as utterly without redeeming social impor-
tance" was implicit in the history of the First Amendment: the original States provided for the prose-
cution of libel, blasphemy, and profanity, and the
"universal judgment that obscenity should be restrained [is] reflected in the international agreement
of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws en-
acted by Congress from 1842 to 1956."
Id. at 354 U. S. 484-485 (footnotes omitted).
Roth was followed by 15 years during which this Court struggled with "the intractable obscenity
problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704 (1968) (opinion of Harlan,
J.). See, e.g., Redrup v. New York, 386 U. S. 767 (1967). Despite considerable vacillation over the
proper definition of obscenity, a majority of the Members of the Court remained firm in the position
that
"the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material
when the mode of dissemination carries with it a significant danger of offending the sensibilities of
Page 458 U. S. 755
unwilling recipients or of exposure to juveniles."
Miller v. California, supra, at 413 U. S. 119 (footnote omitted); Stanley v. Georgia, 394 U. S. 557,
394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate
77
Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York, supra, at 386 U. S. 769; Jacobel-
lis v. Ohio, 378 U. S. 184, 378 U. S. 195 (1964).
Throughout this period, we recognized "the inherent dangers of undertaking to regulate any form of
expression." Miller v. California, supra, at 413 U. S. 23. Consequently, our difficulty was not only to
assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited,
but also to devise substantive limits on what fell within the permissible scope of regulation. In Miller
v. California, supra, a majority of the Court agreed that a
"state offense must also be limited to works which, taken as a whole, appeal to the prurient interest
in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political, or scientific value."
Id. at 413 U. S. 24. Over the past decade, we have adhered to the guidelines expressed in Miller,
[Footnote 6] which subsequently has been followed in the regulatory schemes of most States. [Foot-
note 7]
Page 458 U. S. 756
B production of material which requires the sexual exploitation of children is to be effectively controlled.
The Miller standard, like its predecessors, was an accommodation between the State's interests in
protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the
dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws di-
rected at the dissemination of child pornography run the risk of suppressing protected expression by
allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are
persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions
of children.
First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physi-
cal and psychological
Page 458 U. S. 757
wellbeing of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 457 U.
S. 607 (1982). "A democratic society rests, for its continuance, upon the healthy, well-rounded
growth of young people into full maturity as citizens." Prince v. Massachusetts, 321 U. S. 158, 321
U. S. 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and
emotional wellbeing of youth even when the laws have operated in the sensitive area of constitution-
ally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use
of a child to distribute literature on the street was valid notwithstanding the statute's effect on a
First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting
children from exposure to nonobscene literature. Most recently, we held that the Government's inter-
est in the "wellbeing of its youth" justified special treatment of indecent broadcasting received by
adults as well as children. FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
The prevention of sexual exploitation and abuse of children constitutes a government objective of
surpassing importance. The legislative findings accompanying passage of the New York laws reflect
this concern:
"[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The
care of children is a sacred trust and should not be abused by those who seek to profit through a
commercial network based upon the exploitation of children. The public policy of the state demands
the protection of children from exploitation through sexual performances."
1977 N.Y.Laws, ch. 910, § 1. [Footnote 8]
Page 458 U. S. 758
We shall not second-guess this legislative judgment. Respondent has not intimated that we do so.
Suffice it to say that virtually all of the States and the United States have passed legislation pro-
scribing the production of or otherwise combating "child pornography." The legislative judgment, as
well as the judgment found in the relevant literature, is that the use of children as subjects of
pornographic materials is harmful to the physiological, emotional, and mental health of the child.
[Footnote 9] That judgment, we think, easily passes muster under the First Amendment.
Page 458 U. S. 759
Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically
related to the sexual abuse of children in at least two ways. First, the materials produced are a per-
manent record of the children's participation and the harm to the child is exacerbated by their circu-
lation. [Footnote 10] Second, the distribution network for child pornography must be closed if the
Indeed, there is no serious contention that the legislature was unjustified in believing that it is diffi-
cult, if
Page 458 U. S. 760
not impossible, to halt the exploitation of children by pursuing only those who produce the pho-
tographs and movies. While the production of pornographic materials is a low profile, clandestine
industry, the need to market the resulting products requires a visible apparatus of distribution. The
most expeditious, if not the only practical, method of law enforcement may be to dry up the market
for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise
promoting the product. Thirty-five States and Congress have concluded that restraints on the distrib-
ution of pornographic materials are required in order to effectively combat the problem, and there is
a body of literature and testimony to support these legislative conclusions. [Footnote 11] Cf. United
States v. Darby, 312 U. S. 100 (1941) (upholding federal restrictions on sale of goods manufactured
in violation of Fair Labor Standards Act).
Respondent does not contend that the State is unjustified in pursuing those who distribute child
pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materi-
als that are legally obscene under the Miller test. While some States may find that this approach
properly accommodates its interests, it does not follow
Page 458 U. S. 761
that the First Amendment prohibits a State from going further. The Miller standard, like all general
definitions of what may be banned as obscene, does not reflect the State's particular and more com-
pelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the ques-
tion under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the
average person bears no connection to the issue of whether a child has been physically or psycholog-
ically harmed in the production of the work. Similarly, a sexually explicit depiction need not be
"patently offensive" in order to have required the sexual exploitation of a child for its production. In
addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific
value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child
[who has been abused] whether or not the material . . . has a literary, artistic, political or social
78
value." Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude
that the Miller standard is a satisfactory solution to the child pornography problem. [Footnote 12]
Third. The advertising and selling of child pornography provide an economic motive for, and are thus
an integral part of, the production of such materials, an activity illegal throughout the Nation. [Foot-
note 13]
"It rarely has been suggested that
Page 458 U. S. 762
the constitutional freedom for speech and press extends its immunity to speech or writing used as an
integral part of conduct in violation of a valid criminal statute."
Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 336 U. S. 498 (1949). [Footnote 14] We note
that, were the statutes outlawing the employment of children in these films and photographs fully
effective, and the constitutionality of these laws has not been questioned, the First Amendment im-
plications would be no greater than that presented by laws against distribution: enforceable produc-
tion laws would leave no child pornography to be marketed. [Footnote 15]
Fourth. The value of permitting live performances and photographic reproductions of children engaged
in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual
depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute
an important and necessary part of a literary performance
Page 458 U. S. 763
or scientific or educational work. As a state judge in this case observed, if it were necessary for
literary or artistic value, a person over the statutory age who perhaps looked younger could be uti-
lized. [Footnote 16] Simulation outside of the prohibition of the statute could provide another alter-
native. Nor is there any question here of censoring a particular literary theme or portrayal of sexual
activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more
"realistic" by utilizing or photographing children.
Fifth. Recognizing and classifying child pornography as a category of material outside the protection
of the First Amendment is not incompatible with our earlier decisions. "The question whether speech
is, or is not, protected by the First Amendment often depends on the content of the speech." Young
v. American Mini Theatres, Inc., 427 U. S. 50, 427 U. S. 66 (1976) (opinion of STEVENS, J., joined
by BURGER, C.J., and WHITE and REHNQUIST JJ.). See also FCC v. Pacifica Foundation, 438 U. S. 726,
438 U. S. 742-748 (1978) (opinion of STEVENS, J., joined by BURGER, C.J., and REHNQUIST, J.). "[I]t
is the content of [an] utterance that determines whether it is a protected epithet or an unprotected
fighting comment.'" Young v. American Mini Theatres, Inc., supra, at 427 U. S. 66. See Chaplinsky v.
New Hampshire, 315 U. S. 568 (1942). Leaving aside the special considerations when public officials
are the target, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), a libelous publication is not
protected by the Constitution. Beauharnais v. Illinois, 343 U. S. 250 (1952). Thus, it is not rare that
a content-based classification of speech has been accepted because it may be appropriately general-
ized that within the confines of the given classification, the evil to be restricted so overwhelmingly
outweighs
Page 458 U. S. 764
the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.
When a definable class of material, such as that covered by § 263.15, bears so heavily and perva-
sively on the welfare of children engaged in its production, we think the balance of competing inter-
ests is clearly struck, and that it is permissible to consider these materials as without the protection
of the First Amendment.
C
There are, of course, limits on the category of child pornography which, like obscenity, is unprotected
by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited
must be adequately defined by the applicable state law, as written or authoritatively construed. Here
the nature of the harm to be combated requires that the state offense be limited to works that
visually depict sexual conduct by children below a specified age. [Footnote 17] The category of
"sexual conduct" proscribed must also be suitably limited and described.
The test for child pornography is separate from the obscenity standard enunciated in Miller, but may
be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following re-
spects: a trier of fact need not find that the material appeals to the prurient interest of the average
person; it is not required that sexual conduct portrayed be done so in a patently offensive manner;
and the material at issue need not be considered as a whole. We note that the distribution
Page 458 U. S. 765
of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve
live performance or photographic or other visual reproduction of live performances, retains First
Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without
some element of scienter on the part of the defendant. Smith v. California, 361 U. S. 147 (1959);
Hamling v. United States, 418 U. S. 87 (1974).
D
Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the
above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and
represent the kind of conduct that, if it were the theme of a work, could render it legally obscene:
"actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals."
§ 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was
given in Miller as an example of a permissible regulation. 413 U.S. at 413 U. S. 25. A performance is
defined only to include live or visual depictions: "any play, motion picture, photograph or dance . . .
[or] other visual representation exhibited before an audience." § 263.00(4). Section 263.15 expressly
includes a scienter requirement.
We hold that § 263.15 sufficiently describes a category of material the production and distribution of
which is not entitled to First Amendment protection. It is therefore clear that there is nothing uncon-
stitutionally "underinclusive" about a statute that singles out this category of material for proscrip-
tion. [Footnote 18] It also follows that the State is not barred by
Page 458 U. S. 766
the First Amendment from prohibiting the distribution of unprotected materials produced outside the
State. [Footnote 19]
III
It remains to address the claim that the New York statute is unconstitutionally overbroad because it
would forbid the distribution of material with serious literary, scientific, or educational value or mater-
ial which does not threaten the harms sought to be combated by the State. Respondent prevailed on
that ground below, and it is to that issue that we now turn.
79
The New York Court of Appeals recognized that overbreadth scrutiny has been limited with respect to
conduct-related regulation, Broadrick v. Oklahoma, 413 U. S. 601 (1973), but it did not apply the
test enunciated in Broadrick because the challenged statute, in its view, was directed at "pure
speech." The court went on to find that § 263.15 was fatally overbroad:
"[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined
sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or
distributing of medical or educational materials containing photographs of such acts.
Page 458 U. S. 767
Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing
illustrations of what they oppose."
52 N.Y.2d at 678, 422 N.E.2d at 525.
While the construction that a state court gives a state statute is not a matter subject to our review,
Wainwright v. Stone, 414 U. S. 21, 414 U. S. 22-23 (1973); Gooding v. Wilson, 405 U. S. 518, 405
U. S. 520 (1972), this Court is the final arbiter of whether the Federal Constitution necessitated the
invalidation of a state law. It is only through this process of review that we may correct erroneous
applications of the Constitution that err on the side of an overly broad reading of our doctrines and
precedents, as well as state court decisions giving the Constitution too little shrift. A state court is
not free to avoid a proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U.
S. 809, 421 U. S. 817 (1975). By the same token, it should not be compelled to entertain an over-
breadth attack when not required to do so by the Constitution.
A In Broadrick, we explained the basis for this requirement:
The traditional rule is that a person to whom a statute may constitutionally be applied may not chal-
lenge that statute on the ground that it may conceivably be applied unconstitutionally to others in
situations not before the Court. Broadrick v. Oklahoma, supra, at 413 U. S. 610; United States v.
Raines, 362 U. S. 17, 362 U. S. 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495,
301 U. S. 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 226 U. S. 219-
220 (1912). In Broadrick, we recognized that this rule reflects two cardinal principles of our constitu-
tional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U. S. 420, 366
U. S. 429 (1961), and prudential limitations on constitutional adjudication. [Footnote 20] In United
States v. Raines, supra, at 362 U. S. 21, we
Page 458 U. S. 768
noted the "incontrovertible proposition" that it
"'would indeed be undesirable for this Court to consider every conceivable situation which might pos-
sibly arise in the application of complex and comprehensive legislation,'"
(quoting Barrows v. Jackson, 346 U. S. 249, 346 U. S. 256 (1953)). By focusing on the factual
situation before us, and similar cases necessary for development of a constitutional rule, [Footnote
21] we face "flesh-and-blood" [Footnote 22] legal problems with data "relevant and adequate to an
informed judgment." [Footnote 23] This practice also fulfills a valuable institutional purpose: it allows
state courts the opportunity to construe a law to avoid constitutional infirmities.
What has come to be known as the First Amendment overbreadth doctrine is one of the few excep-
tions to this principle, and must be justified by "weighty countervailing policies." United States v.
Raines, supra, at 362 U. S. 223. The doctrine is predicated on the sensitive nature of protected
expression:
"persons whose expression is constitutionally protected may well refrain from exercising their rights
for fear of criminal sanctions by a statute susceptible of application to protected expression."
Village of Schaumburg v.
Page 458 U. S. 769
Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 634 (1980); Gooding v. Wilson, supra,
at 405 U. S. 521. It is for this reason that we have allowed persons to attack overly broad statutes
even though the conduct of the person making the attack is clearly unprotected, and could be pro-
scribed by a law drawn with the requisite specificity. Dombrowski v. Pfister, 380 U. S. 479, 380 U. S.
486 (1965); Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98 (1940); United States v. Raines,
supra, at 362 U. S. 21-22; Gooding v. Wilson, supra, at 405 U. S. 521.
The scope of the First Amendment overbreadth doctrine, like most exceptions to established princi-
ples, must be carefully tied to the circumstances in which facial invalidation of a statute is truly war-
ranted. Because of the wide-reaching effects of striking down a statute on its face at the request of
one whose own conduct may be punished despite the First Amendment, we have recognized that the
overbreadth doctrine is "strong medicine," and have employed it with hesitation, and then "only as a
last resort." Broadrick, 413 U.S. at 413 U. S. 613. We have, in consequence, insisted that the over-
breadth involved be "substantial" before the statute involved will be invalidated on its face. [Footnote
24]
Page 458 U. S. 770
"[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an ex-
ception to our traditional rules of practice, and that its function, a limited one at the outset, attenu-
ates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure
speech' toward conduct, and that conduct -- even if expressive -- falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a point where that effect -- at best a pre-
diction -- cannot, with confidence, justify invalidating a statute on its face, and so prohibiting a State
from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf.
Aldelman v. United States, 394 U. S. 165, 394 U. S. 174-175 (1969)."
Id. at 413 U. S. 615. We accordingly held that,
"particularly where conduct, and not merely speech, is involved, we believe that the overbreadth of a
statute must not only be real, but substantial as well, judged in relation to the statute's plainly legit-
imate sweep."
Ibid. [Footnote 25]
Page 458 U. S. 771
Broadrick examined a regulation involving restrictions on political campaign activity, an area not con-
sidered "pure speech," and thus it was unnecessary to consider the proper overbreadth test when a
law arguably reaches traditional forms of expression such as books and films. As we intimated in
Broadrick, the requirement of substantial overbreadth extended "at the very least" to cases involving
conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of
80
Broadrick is sound, and should be applied in the present context involving the harmful employment of
children to make sexually explicit materials for distribution.
The premise that a law should not be invalidated for overbreadth unless it reaches a substantial num-
ber of impermissible applications is hardly novel. On most occasions involving facial invalidation, the
Court has stressed the embracing sweep of the statute over protected expression. [Footnote 26]
Page 458 U. S. 772
Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick:
"We have never held that a statute should be held invalid on its face merely because it is possible to
conceive of a single impermissible application, and in that sense, a requirement of substantial over-
breadth is already implicit in the doctrine."
Id. at 413 U. S. 630. The requirement of substantial overbreadth is directly derived from the purpose
and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential
to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of
protected speech can be expected to decrease with the declining reach of the regulation. [Footnote
27] This observation appears equally applicable to the publication of books and films as it is to activ-
ities, such as picketing or participation in election campaigns, which have previously been categorized
as involving conduct plus speech. We see no appreciable difference between the position of a pub-
lisher or bookseller in doubt as to the reach of New York's child pornography law and the situation
faced by the Oklahoma state employees with respect to that State's restriction on partisan political
activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell
materials that may fall within the statute's scope, may be less likely to be deterred than the employ-
ee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U. S.
350, 433 U. S. 380-381 (1977) (overbreadth analysis inapplicable to commercial speech).
This requirement of substantial overbreadth may justifiably be applied to statutory challenges which
arise in defense
Page 458 U. S. 773
of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf.
Parker v. Levy, 417 U. S. 733, 417 U. S. 760 (1974). Indeed, the Court's practice when confronted
with ordinary criminal laws that are sought to be applied against protected conduct is not to invali-
date the law in toto, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U.
S. 296 (1940); Edwards v. South Carolina, 372 U. S. 229 (1973). We recognize, however, that the
penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We
simply hold that the fact that a criminal prohibition is involved does not obviate the need for the
inquiry or a priori warrant a finding of substantial overbreadth.
Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the
paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible ap-
plications. New York, as we have held, may constitutionally prohibit dissemination of material specified
in § 263.15. While the reach of the statute is directed at the hard core of child pornography, the
Court of Appeals was understandably concerned that some protected expression, ranging from med-
ical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if
ever, it may be necessary to employ children to engage in conduct clearly within the reach of §
263.15 in order to produce educational, medical, or artistic works cannot be known with certainty.
Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications
of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor
will we assume that the New York courts will widen the possibly invalid reach of the statute by giving
an expansive construction to the proscription on "lewd exhibition[s] of the genitals." Under these
circumstances, § 263.15 is
"not substantially overbroad, and . . . whatever overbreadth may exist
Page 458 U. S. 774
should be cured through case-by-case analysis of the fact situations to which its sanctions, asserted-
ly, may not be applied."
Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 615-616.
IV
Because § 263.15 is not substantially overbroad, it is unnecessary to consider its application to ma-
terial that does not depict sexual conduct of a type that New York may restrict consistent with the
First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute
does not violate the First Amendment as applied to the States through the Fourteenth. [Footnote
28] The judgment of the New York Court of Appeals is reversed, and the case is remanded to that
court for further proceedings not inconsistent with this opinion.
So ordered.
JUSTICE BLACKMUN concurs in the result.
G.R. No. 89572 December 21, 1989
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCA-
TIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding
Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents.
Ramon M. Guevara for private respondent.
CRUZ, J.:
The issue before us is mediocrity. The question is whether a person who has thrice failed the National
Medical Admission Test (NMAT) is entitled to take it again.
The petitioner contends he may not, under its rule that-
h) A student shall be allowed only three (3) chances to take the NMAT. After three (3) successive
failures, a student shall not be allowed to take the NMAT for the fourth time.
The private respondent insists he can, on constitutional grounds.
But first the facts.
The private respondent is a graduate of the University of the East with a degree of Bachelor of Sci-
ence in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many
times.1 When he applied to take it again, the petitioner rejected his application on the basis of the
aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his
admission to the test.
In his original petition for mandamus, he first invoked his constitutional rights to academic freedom
and quality education. By agreement of the parties, the private respondent was allowed to take the
NMAT scheduled on April 16, 1989, subject to the outcome of his petition. 2 In an amended petition
filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series of
81
1972, containing the above-cited rule. The additional grounds raised were due process and equal
protection.
After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged
order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had
been deprived of his right to pursue a medical education through an arbitrary exercise of the police
power. 3
We cannot sustain the respondent judge. Her decision must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended
to limit the admission to medical schools only to those who have initially proved their competence
and preparation for a medical education. Justice Florentino P. Feliciano declared for a unanimous
Court:
Perhaps the only issue that needs some consideration is whether there is some reasonable relation
between the prescribing of passing the NMAT as a condition for admission to medical school on the
one hand, and the securing of the health and safety of the general community, on the other hand.
This question is perhaps most usefully approached by recalling that the regulation of the pratice of
medicine in all its branches has long been recognized as a reasonable method of protecting the
health and safety of the public. That the power to regulate and control the practice of medicine
includes the power to regulate admission to the ranks of those authorized to practice medicine, is
also well recognized. Thus, legislation and administrative regulations requiring those who wish to prac-
tice medicine first to take and pass medical board examinations have long ago been recognized as
valid exercises of governmental power. Similarly, the establishment of minimum medical educational
requirements-i.e., the completion of prescribed courses in a recognized medical school-for admission
to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority
of the state. What we have before us in the instant case is closely related: the regulation of access
to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regula-
tion of this type: the improvement of the professional and technical quality of the graduates of med-
ical schools, by upgrading the quality of those admitted to the student body of the medical schools.
That upgrading is sought by selectivity in the process of admission, selectivity consisting, among
other things, of limiting admission to those who exhibit in the required degree the aptitude for med-
ical studies and eventually for medical practice. The need to maintain, and the difficulties of maintain-
ing, high standards in our professional schools in general, and medical schools in particular, in the
current state of our social and economic development, are widely known.
We believe that the government is entitled to prescribe an admission test like the NMAT as a means
of achieving its stated objective of "upgrading the selection of applicants into [our] medical schools"
and of "improv[ing] the quality of medical education in the country." Given the widespread use today
of such admission tests in, for instance, medical schools in the United States of America (the Medical
College Admission Test [MCAT] and quite probably, in other countries with far more developed educa-
tional resources than our own, and taking into account the failure or inability of the petitioners to
even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the
securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall,
is the protection of the public from the potentially deadly effects of incompetence and ignorance in
those who would undertake to treat our bodies and minds for disease or trauma.
However, the respondent judge agreed with the petitioner that the said case was not applicable. Her
reason was that it upheld only the requirement for the admission test and said nothing about the so-
called "three-flunk rule."
We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue
raised in both cases is the academic preparation of the applicant. This may be gauged at least initial-
ly by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot
be regarded any less valid than the former in the regulation of the medical profession.
There is no need to redefine here the police power of the State. Suffice it to repeat that the power
is validly exercised if (a) the interests of the public generally, as distinguished from those of a partic-
ular class, require the interference of the State, and (b) the means employed are reasonably neces-
sary to the attainment of the object sought to be accomplished and not unduly oppressive upon
individuals.5
In other words, the proper exercise of the police power requires the concurrence of a lawful subject
and a lawful method.
The subject of the challenged regulation is certainly within the ambit of the police power. It is the
right and indeed the responsibility of the State to insure that the medical profession is not infiltrated
by incompetents to whom patients may unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is
it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ulti-
mately the medical profession from the intrusion of those not qualified to be doctors.
While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be
a doctor. This is true of any other calling in which the public interest is involved; and the closer the
link, the longer the bridge to one's ambition. The State has the responsibility to harness its human
resources and to see to it that they are not dissipated or, no less worse, not used at all. These
resources must be applied in a manner that will best promote the common good while also giving the
individual a sense of satisfaction.
A person cannot insist on being a physician if he will be a menace to his patients. If one who wants
to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he
may not be forced to be a plumber, but on the other hand he may not force his entry into the bar.
By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside
to take a course in nursing, however appropriate this career may be for others.
The right to quality education invoked by the private respondent is not absolute. The Constitution
also provides that "every citizen has the right to choose a profession or course of study, subject to
fair, reasonable and equitable admission and academic requirements.6
The private respondent must yield to the challenged rule and give way to those better prepared.
Where even those who have qualified may still not be accommodated in our already crowded medical
schools, there is all the more reason to bar those who, like him, have been tested and found wanting.
The contention that the challenged rule violates the equal protection clause is not well-taken. A law
does not have to operate with equal force on all persons or things to be conformable to Article III,
Section 1 of the Constitution.
There can be no question that a substantial distinction exists between medical students and other
students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly
affects the very lives of the people, unlike other careers which, for this reason, do not require more
vigilant regulation. The accountant, for example, while belonging to an equally respectable profession,
82
does not hold the same delicate responsibility as that of the physician and so need not be similarly
treated.
There would be unequal protection if some applicants who have passed the tests are admitted and
others who have also qualified are denied entrance. In other words, what the equal protection re-
quires is equality among equals.
The Court feels that it is not enough to simply invoke the right to quality education as a guarantee
of the Constitution: one must show that he is entitled to it because of his preparation and promise.
The private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say
the least, it is certainly misplaced, like a hopeless love.
No depreciation is intended or made against the private respondent. It is stressed that a person who
does not qualify in the NMAT is not an absolute incompetent unfit for any work or occupation. The
only inference is that he is a probably better, not for the medical profession, but for another calling
that has not excited his interest.
In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed
and may even be outstanding. It is for the appropriate calling that he is entitled to quality education
for the full harnessing of his potentials and the sharpening of his latent talents toward what may
even be a brilliant future.
We cannot have a society of square pegs in round holes, of dentists who should never have left the
farm and engineers who should have studied banking and teachers who could be better as merchants.
It is time indeed that the State took decisive steps to regulate and enrich our system of education
by directing the student to the course for which he is best suited as determined by initial tests and
evaluations. Otherwise, we may be "swamped with mediocrity," in the words of Justice Holmes, not
because we are lacking in intelligence but because we are a nation of misfits.
WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13, 1989,
is REVERSED, with costs against the private respondent. It is so ordered.
Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
 
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all sur-
named MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, mi-
nor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,
minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, 
 rendered:
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented
by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRAN-
CISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology
which the petitioners dramatically associate with the twin concepts of "inter-generational responsibili-
ty" and "inter-generational justice." Specifically, it touches on the issue of whether the said petition-
ers have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape
of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati,
Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs
therein, now the principal petitioners, are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domes-
tic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concert-
ed action geared for the protection of our environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel
C. Alcala, was subsequently ordered upon proper motion by the petitioners.1 The complaint2 was insti-
tuted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The same was filed for themselves and others
who are equally concerned about the preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The minors further asseverate that they "represent
their generation as well as generations yet unborn."4 Consequently, it is prayed for that judgment be
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5
83
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands
has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant
rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests
contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured and flourished since time immemorial; sci-
entific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-
six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion
and disturbance of this balance as a consequence of deforestation have resulted in a host of envi-
ronmental tragedies, such as (a) water shortages resulting from drying up of the water table, other-
wise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water
table as a result of the intrusion therein of salt water, incontrovertible examples of which may be
found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the con-
sequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated
at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island
of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and
fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of
corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recur-
rent spells of drought as is presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agri-
cultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and
shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduc-
tion of the earth's capacity to process carbon dioxide gases which has led to perplexing and cat-
astrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforesta-
tion are so capable of unquestionable demonstration that the same may be submitted as a matter of
judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as
well as documentary, photographic and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of
said rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are
left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares
of immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per
hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this con-
tinued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in para-
graph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and
their successors — who may never see, use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource prop-
erty he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled
to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious dam-
age and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the
rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic),
bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines
had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy
of the State —
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Fil-
ipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and
well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory
to the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and effi-
cient use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,
id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature." (Section 16, Article II, id.)
84
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the com-
plaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and
(2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is
dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7
In the said order, not only was the defendant's claim — that the complaint states no cause of action
against him and that it raises a political question — sustained, the respondent Judge further ruled
that the granting of the relief prayed for would result in the impairment of contracts which is prohib-
ited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the dismissal order on the ground that the respon-
dent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-
minors not only represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit
their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf
of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it con-
tains sufficient allegations concerning their right to a sound environment based on Articles 19, 20
and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the
DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful
ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable
right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on
the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right
to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover more areas for logging than what is available
involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petition-
ers maintain that the same does not apply in this case because TLAs are not contracts. They likewise
submit that even if TLAs may be considered protected by the said clause, it is well settled that they
may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law. They
see nothing in the complaint but vague and nebulous allegations concerning an "environmental right"
which supposedly entitles the petitioners to the "protection by the state in its capacity as parens
patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiter-
ate the theory that the question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative branches of Government.
They therefore assert that the petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done
by the State without due process of law. Once issued, a TLA remains effective for a certain period of
time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to have violated the terms
of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present respondents did not take
issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable,
if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full protection of all concerned inter-
ests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Re-
vised Rules of Court are present both in the said civil case and in the instant petition, the latter
being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent
their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept of in-
tergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm
and harmony indispensably include, inter alia, the judicious disposition, utilization, management, re-
newal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be
equitably accessible to the present as well as future generations. 10 Needless to say, every generation
has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure the protec-
tion of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits
of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of
the issues raised and arguments adduced by the parties, We do not hesitate to find for the petition-
ers and rule against the respondent Judge's challenged order for having been issued with grave abuse
of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as fol-
lows:
85
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with
the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic)
fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and
protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague con-
clusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint
is replete with vague assumptions and conclusions based on unverified data. A reading of the com-
plaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and health-
ful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in
the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health con-
sciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does not follow that it is less important than
any of the civil and political rights enumerated in the latter. Such a right belongs to a different cate-
gory of rights altogether for it concerns nothing less than self-preservation and self-perpetuation —
aptly and fittingly stressed by the petitioners — the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights need not even be
written in the Constitution for they are assumed to exist from the inception of humankind. If they are
now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation, but also
for those to come — generations which stand to inherit nothing but parched earth incapable of sus-
taining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from im-
pairing the environment. During the debates on this right in one of the plenary sessions of the 1986
Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution — air, water
and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correla-
tive duty of not impairing the same and, therefore, sanctions may be provided for impairment of
environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as
well as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environ-
ment and Natural Resources "shall be the primary government agency responsible for the conserva-
tion, management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources
as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom
for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the fol-
lowing statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustain-
able use, development, management, renewal, and conservation of the country's forest, mineral, land,
off-shore areas and other natural resources, including the protection and enhancement of the quality
of the environment, and equitable access of the different segments of the population to the devel-
opment and the use of the country's natural resources, not only for the present generation but for
future generations as well. It is also the policy of the state to recognize and apply a true value sys-
tem including social and environmental cost implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the
full exploration and development as well as the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources, consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible to the different segments
of the present as well as future generations.
86
(2) The State shall likewise recognize and apply a true value system that takes into account social
and environmental cost implications relative to the utilization, development and conservation of our
natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment." Section 2 of the same Title, on the other hand,
specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of
the agency's being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitution-
al mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as
the bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future genera-
tions. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine
Environment Code) were issued. The former "declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos, and (c) to insure the attainment of an environmental
quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "respon-
sibilities of each generation as trustee and guardian of the environment for succeeding generations."
17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology
is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under
E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect
or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the
TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced
and healthful ecology; hence, the full protection thereof requires that no further TLAs should be
renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, 19 the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other matter should be considered; fur-
thermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such al-
leged facts to be true, may the court render a valid judgment in accordance with the prayer in the
complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the
facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introducto-
ry affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION,
to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis there-
of, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however,
that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party
defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formula-
tion or determination by the executive or legislative branches of Government is not squarely put in
issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine
is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield
that protects executive and legislative actions from judicial inquiry or review. The second paragraph of
section 1, Article VIII of the Constitution states that:
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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the set-
tlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitu-
tion clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of con-
tracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction,
grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in
the country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 24
87
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke
in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to
the timber license holders because he would have forever bound the Government to strictly respect
the said licenses according to their terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as correctly pointed out by the petition-
ers, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705)
which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace
or rescind any contract, concession, permit, licenses or any other form of privilege granted
herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a con-
tract, property or a property right protested by the due process clause of the Constitution. In Tan
vs. Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a con-
tract between the authority, federal, state, or municipal, granting it and the person to whom it is
granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation
(37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promot-
ed. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to quali-
fied entities, and do not vest in the latter a permanent or irrevocable right to the particular conces-
sion area and the forest products therein. They may be validly amended, modified, replaced or re-
scinded by the Chief Executive when national interests so require. Thus, they are not deemed con-
tracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. De-
cree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does
not involve a law or even an executive issuance declaring the cancellation or modification of existing
timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or modifications, the same can-
not still be stigmatized as a violation of the non-impairment clause. This is because by its very nature
and purpose, such as law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and healthful ecology, pro-
moting their health and enhancing the general welfare. In Abe vs. Foster Wheeler 

Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obliga-
tions of contract is limited by the exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American
Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of contracts are normally matters
of private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist
if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to regu-
late it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, re-
newing or approving new timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it
as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of
the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
 
 
 
Separate Opinions
 
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the utiliza-
tion of all the natural resources in the territorial base of our polity. I have therefore sought to clarify,
basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners'
claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the
88
legal interest which a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved — membership in this "class" appears to embrace
everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environ-
mental protection, as against both the public administrative agency directly concerned and the private
persons or entities operating in the field or sector of activity involved. Whether such beneficiaries'
right of action may be found under any and all circumstances, or whether some failure to act, in the
first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion
of administrative remedies"), is not discussed in the decision and presumably is left for future deter-
mination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific funda-
mental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no
question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is fundamental in character, I suggest, with very
great respect, that it cannot be characterized as "specific," without doing excessive violence to lan-
guage. It is in fact very difficult to fashion language more comprehensive in scope and generalized in
character than a right to "a balanced and healthful ecology." The list of particular claims which can
be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission
of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents,
garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land, streets and thor-
oughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea resources through the use of dyna-
mite or cyanide and other chemicals; contamination of ground water resources; loss of certain species
of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code;
and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and
abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a
balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and "envi-
ronment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range
of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Envi-
ronment Code identifies with notable care the particular government agency charged with the formu-
lation and implementation of guidelines and programs dealing with each of the headings and sub-head-
ings mentioned above. The Philippine Environment Code does not, in other words, appear to contem-
plate action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the Con-
stitution — that is or may be violated by the actions, or failures to act, imputed to the public re-
spondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy princi-
ples found in the Constitution and the existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to demonstrate, instead of aborting
the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action
be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two
(2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regula-
tion is not alleged or proved, petitioners can be expected to fall back on the expanded conception of
judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
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. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of discre-
tion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to
propel courts into the uncharted ocean of social and economic policy making. At least in respect of
the vast area of environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no specific, operable norms
and standards are shown to exist, then the policy making departments — the legislative and execu-
89
tive departments — must be given a real and effective opportunity to fashion and promulgate those
norms and standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agree-
ments or TLA's petitioners demand public respondents should cancel, must be impleaded in the pro-
ceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not de-
pendent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of
the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.
 
 
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to influence profoundly the direction and
course of the protection and management of the environment, which of course embraces the utiliza-
tion of all the natural resources in the territorial base of our polity. I have therefore sought to clarify,
basically to myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing
and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners'
claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the
legal interest which a plaintiff must have in the subject matter of the suit. Because of the very
broadness of the concept of "class" here involved — membership in this "class" appears to embrace
everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of action
petitioners seek to require public respondents to take, is vested with the necessary locus standi. The
Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environ-
mental protection, as against both the public administrative agency directly concerned and the private
persons or entities operating in the field or sector of activity involved. Whether such beneficiaries'
right of action may be found under any and all circumstances, or whether some failure to act, in the
first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion
of administrative remedies"), is not discussed in the decision and presumably is left for future deter-
mination in an appropriate case.
The Court has also declared that the complaint has alleged and focused upon "one specific funda-
mental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no
question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is fundamental in character, I suggest, with very
great respect, that it cannot be characterized as "specific," without doing excessive violence to lan-
guage. It is in fact very difficult to fashion language more comprehensive in scope and generalized in
character than a right to "a balanced and healthful ecology." The list of particular claims which can
be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission
of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents,
garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines
and whole communities; of dumping of organic and inorganic wastes on open land, streets and thor-
oughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea resources through the use of dyna-
mite or cyanide and other chemicals; contamination of ground water resources; loss of certain species
of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code;
and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and
abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a
balanced and healthful ecology") and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the
other hand, a compendious collection of more "specific environment management policies" and "envi-
ronment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range
of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Envi-
ronment Code identifies with notable care the particular government agency charged with the formu-
lation and implementation of guidelines and programs dealing with each of the headings and sub-head-
ings mentioned above. The Philippine Environment Code does not, in other words, appear to contem-
plate action on the part of private persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in
the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section
16) of Article II of the Constitution are self-executing and judicially enforceable even in their present
form. The implications of this doctrine will have to be explored in future cases; those implications are
too large and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
— a right cast in language of a significantly lower order of generality than Article II (15) of the Con-
90
stitution — that is or may be violated by the actions, or failures to act, imputed to the public re-
spondent by petitioners so that the trial court can validly render judgment granting all or part of the
relief prayed for. To my mind, the Court should be understood as simply saying that such a more
specific legal right or rights may well exist in our corpus of law, considering the general policy princi-
ples found in the Constitution and the existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to demonstrate, instead of aborting
the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action
be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two
(2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration — where a specific violation of law or applicable regula-
tion is not alleged or proved, petitioners can be expected to fall back on the expanded conception of
judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:
Section 1. . . .
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. (Emphasis supplied)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the
right to health" are combined with remedial standards as broad ranging as "a grave abuse of discre-
tion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to
propel courts into the uncharted ocean of social and economic policy making. At least in respect of
the vast area of environmental protection and management, our courts have no claim to special
technical competence and experience and professional qualification. Where no specific, operable norms
and standards are shown to exist, then the policy making departments — the legislative and execu-
tive departments — must be given a real and effective opportunity to fashion and promulgate those
norms and standards, and to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agree-
ments or TLA's petitioners demand public respondents should cancel, must be impleaded in the pro-
ceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not de-
pendent upon proof of breach by the timber companies of one or more of the specific terms and
conditions of their concession agreements (and this, petitioners implicitly assume), what will those
companies litigate about? The answer I suggest is that they may seek to dispute the existence of
the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public
respondent administrative agency. They may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances which exist.
I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.
G.R. Nos. 171947-48             December 18, 2008
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH, DE-
PARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO AL-
BARRACIN, MANUEL SANTOS, JR., DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LIN-
TAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of climate change, has of late gained the
attention of the international community. Media have finally trained their sights on the ill effects of
pollution, the destruction of forests and other critical habitats, oil spills, and the unabated improper
disposal of garbage. And rightly so, for the magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by itself.2 But amidst hard evidence and
clear signs of a climate crisis that need bold action, the voice of cynicism, naysayers, and procrasti-
nators can still be heard.
This case turns on government agencies and their officers who, by the nature of their respective
offices or by direct statutory command, are tasked to protect and preserve, at the first instance, our
internal waters, rivers, shores, and seas polluted by human activities. To most of these agencies and
their official complement, the pollution menace does not seem to carry the high national priority it
deserves, if their track records are to be the norm. Their cavalier attitude towards solving, if not
mitigating, the environmental pollution problem, is a sad commentary on bureaucratic efficiency and
commitment.
At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with
marine life and, for so many decades in the past, a spot for different contact recreation activities,
but now a dirty and slowly dying expanse mainly because of the abject official indifference of people
and institutions that could have otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a
complaint before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled
to Branch 20 and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that the
water quality of the Manila Bay had fallen way below the allowable standards set by law, specifically
Presidential Decree No. (PD) 1152 or the Philippine Environment Code. This environmental aberration,
the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the
defendants] resulting in the clear and present danger to public health and in the depletion and cont-
amination of the marine life of Manila Bay, [for which reason] ALL defendants must be held jointly
and/or solidarily liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact recreation.3
In their individual causes of action, respondents alleged that the continued neglect of petitioners in
abating the pollution of the Manila Bay constitutes a violation of, among others:
91
(1) Respondents’ constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay
and submit to the RTC a concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspec-
tion of the Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environ-
mental Management Bureau, Department of Environment and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from different beaches around the Manila Bay showed
that the amount of fecal coliform content ranged from 50,000 to 80,000 most probable number
(MPN)/ml when what DENR Administrative Order No. 34-90 prescribed as a safe level for bathing and
other forms of contact recreational activities, or the "SB" level, is one not exceeding 200 MPN/100
ml.4
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS’ efforts to reduce pollution along the Manila Bay through the
Manila Second Sewerage Project. For its part, the Philippine Ports Authority (PPA) presented, as part
of its evidence, its memorandum circulars on the study being conducted on ship-generated waste
treatment and disposal, and its Linis Dagat (Clean the Ocean) project for the cleaning of wastes
accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The dispositive por-
tion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of
contact recreation. To attain this, defendant-agencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and perform their respective duties by
devising a consolidated, coordinated and concerted scheme of action for the rehabilitation and
restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities
in strategic places under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate
sewage facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain
waste facilities to rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but
also of other solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill
and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system
such as re-use or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in
Manila Bay and restock its waters with indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up
and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow
of waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in
Manila Bay. As the construction and engineering arm of the government, DPWH is ordered to actively
participate in removing debris, such as carcass of sunken vessels, and other non-biodegradable
garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and
require them to have proper facilities for the treatment and disposal of fecal sludge and sewage
coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the impor-
tance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay
from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals
(CA) individual Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No.
76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime
Group, and five other executive departments and agencies filed directly with this Court a petition for
review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the said petition to the
CA for consolidation with the consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP
No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Envi-
ronment Code (PD 1152) relate only to the cleaning of specific pollution incidents and do not cover
cleaning in general. And apart from raising concerns about the lack of funds appropriated for cleaning
purposes, petitioners also asserted that the cleaning of the Manila Bay is not a ministerial act which
can be compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied petitioners’ appeal and affirmed the Decision
of the RTC in toto, stressing that the trial court’s decision did not require petitioners to do tasks
outside of their usual basic functions under existing laws.7
92
Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the fol-
lowing ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL COURT’S DECISION DECLARING THAT SECTION 20 OF [PD] 1152
REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND DIS-
CHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I ministerial, its duty being a statutory imposition. The MMDA’s duty in this regard is spelled out in
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION
INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF PETITIONERS
THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings,
Upgrading of Water Quality and Clean-up Operations, envisage a cleanup in general or are they limited
only to the cleanup of specific pollution incidents? And second, can petitioners be compelled by man-
damus to clean up and rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A ministerial duty
is one that "requires neither the exercise of official discretion nor judgment."9 It connotes an act in
which nothing is left to the discretion of the person executing it. It is a "simple, definite duty arising
under conditions admitted or proved to exist and imposed by law."10 Mandamus is available to com-
pel action, when refused, on matters involving discretion, but not to direct the exercise of judgment
or discretion one way or the other.
Petitioners maintain that the MMDA’s duty to take measures and maintain adequate solid waste and
liquid disposal systems necessarily involves policy evaluation and the exercise of judgment on the part
of the agency concerned. They argue that the MMDA, in carrying out its mandate, has to make deci-
sions, including choosing where a landfill should be located by undertaking feasibility studies and cost
estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and that petitioners’
duty to comply with and act according to the clear mandate of the law does not require the exercise
of discretion. According to respondents, petitioners, the MMDA in particular, are without discretion,
for example, to choose which bodies of water they are to clean up, or which discharge or spill they
are to contain. By the same token, respondents maintain that petitioners are bereft of discretion on
whether or not to alleviate the problem of solid and liquid waste disposal; in other words, it is the
MMDA’s ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners’ obligation to perform their duties as defined by law, on
one hand, and how they are to carry out such duties, on the other, are two different concepts. While
the implementation of the MMDA’s mandated tasks may entail a decision-making process, the en-
forcement of the law or the very act of doing what the law exacts to be done is ministerial in nature
and may be compelled by mandamus. We said so in Social Justice Society v. Atienza11 in which the
Court directed the City of Manila to enforce, as a matter of ministerial duty, its Ordinance No. 8027
directing the three big local oil players to cease and desist from operating their business in the so-
called "Pandacan Terminals" within six months from the effectivity of the ordinance. But to illustrate
with respect to the instant case, the MMDA’s duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as other alternative garbage disposal systems is
Sec. 3(c) of Republic Act No. (RA) 7924 creating the MMDA. This section defines and delineates the
scope of the MMDA’s waste disposal services to include:
Solid waste disposal and management which include formulation and implementation of policies, stan-
dards, programs and projects for proper and sanitary waste disposal. It shall likewise include the es-
tablishment and operation of sanitary land fill and related facilities and the implementation of other
alternative programs intended to reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42
which provides the minimum operating requirements that each site operator shall maintain in the
operation of a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,12 enjoining
the MMDA and local government units, among others, after the effectivity of the law on February 15,
2001, from using and operating open dumps for solid waste and disallowing, five years after such
effectivity, the use of controlled dumps.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of putting up a
proper waste disposal system cannot be characterized as discretionary, for, as earlier stated, discre-
tion presupposes the power or right given by law to public functionaries to act officially according to
their judgment or conscience.13 A discretionary duty is one that "allows a person to exercise judg-
ment and choose to perform or not to perform."14 Any suggestion that the MMDA has the option
whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of
legal basis.
A perusal of other petitioners’ respective charters or like enabling statutes and pertinent laws would
yield this conclusion: these government agencies are enjoined, as a matter of statutory obligation, to
perform certain functions relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to perform these duties. Con-
sider:
(1) The DENR, under Executive Order No. (EO) 192,15 is the primary agency responsible for the con-
servation, management, development, and proper use of the country’s environment and natural re-
sources. Sec. 19 of the Philippine Clean Water Act of 2004 (RA 9275), on the other hand, desig-
nates the DENR as the primary government agency responsible for its enforcement and implementa-
tion, more particularly over all aspects of water quality management. On water pollution, the DENR,
under the Act’s Sec. 19(k), exercises jurisdiction "over all aspects of water pollution, determine[s] its
location, magnitude, extent, severity, causes and effects and other pertinent information on pollution,
and [takes] measures, using available methods and technologies, to prevent and abate such
pollution."
93
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Inte-
grated Water Quality Management Framework, and a 10-year Water Quality Management Area Action
Plan which is nationwide in scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275
provides:
Sec. 19 Lead Agency.––The [DENR] shall be the primary government agency responsible for the im-
plementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall
have the following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity
of this Act: Provided, That the Department shall thereafter review or revise and publish annually, or
as the need arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following
the completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following
the completion of the framework for each designated water management area. Such action plan shall
be reviewed by the water quality management area governing board every five (5) years or as need
arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of
completing the preparation of the Integrated Water Quality Management Framework.16 Within twelve
(12) months thereafter, it has to submit a final Water Quality Management Area Action Plan.17 Again,
like the MMDA, the DENR should be made to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the
assistance of and in partnership with various government agencies and non-government organizations,
has completed, as of December 2005, the final draft of a comprehensive action plan with estimated
budget and time frame, denominated as Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of some of its phases should
more than ever prod the concerned agencies to fast track what are assigned them under existing
laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and control over
all waterworks and sewerage systems in the territory comprising what is now the cities of Metro
Manila and several towns of the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It
can prescribe the minimum standards and regulations for the operations of these districts and shall
monitor and evaluate local water standards. The LWUA can direct these districts to construct, oper-
ate, and furnish facilities and services for the collection, treatment, and disposal of sewerage, waste,
and storm water. Additionally, under RA 9275, the LWUA, as attached agency of the DPWH, is tasked
with providing sewerage and sanitation facilities, inclusive of the setting up of efficient and safe col-
lection, treatment, and sewage disposal system in the different parts of the country.19 In relation to
the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna,
Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),20 is
designated as the agency tasked to promulgate and enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and fishery resources. Furthermore, the DA, under
the Philippine Fisheries Code of 1998 (RA 8550), is, in coordination with local government units
(LGUs) and other concerned sectors, in charge of establishing a monitoring, control, and surveillance
system to ensure that fisheries and aquatic resources in Philippine waters are judiciously utilized and
managed on a sustainable basis.21 Likewise under RA 9275, the DA is charged with coordinating with
the PCG and DENR for the enforcement of water quality standards in marine waters.22 More specifi-
cally, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275 shall primar-
ily be responsible for the prevention and control of water pollution for the development, management,
and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is tasked under
EO 29223 to provide integrated planning, design, and construction services for, among others, flood
control and water resource development systems in accordance with national development objectives
and approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide
services relating to "flood control and sewerage management which include the formulation and im-
plementation of policies, standards, programs and projects for an integrated flood control, drainage
and sewerage system."
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA,
whereby MMDA was made the agency primarily responsible for flood control in Metro Manila. For the
rest of the country, DPWH shall remain as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and drainage services shall include the removal of
structures, constructions, and encroachments built along rivers, waterways, and esteros (drainages) in
violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and
Sec. 6 of PD 979,24 or the Marine Pollution Decree of 1976, shall have the primary responsibility of
enforcing laws, rules, and regulations governing marine pollution within the territorial waters of the
Philippines. It shall promulgate its own rules and regulations in accordance with the national rules and
policies set by the National Pollution Control Commission upon consultation with the latter for the
effective implementation and enforcement of PD 979. It shall, under Sec. 4 of the law, apprehend
violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other
floating craft, or other man-made structures at sea, by any method, means or manner, into or upon
the territorial and inland navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or de-
posited either from or out of any ship, barge, or other floating craft or vessel of any kind, or from
the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or
description whatever other than that flowing from streets and sewers and passing therefrom in a
liquid state into tributary of any navigable water from which the same shall float or be washed into
such navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank
of any tributary of any navigable water, where the same shall be liable to be washed into such navi-
gable water, either by ordinary or high tides, or by storms or floods, or otherwise, whereby naviga-
tion shall or may be impeded or obstructed or increase the level of pollution of such water.
94
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was
signed into law on December 13, 1990, the PNP Maritime Group was tasked to "perform all police
functions over the Philippine territorial waters and rivers." Under Sec. 86, RA 6975, the police func-
tions of the PCG shall be taken over by the PNP when the latter acquires the capability to perform
such functions. Since the PNP Maritime Group has not yet attained the capability to assume and per-
form the police functions of PCG over marine pollution, the PCG and PNP Maritime Group shall coordi-
nate with regard to the enforcement of laws, rules, and regulations governing marine pollution within
the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce
said law and other fishery laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate, man-
age and operate a rationalized national port system in support of trade and national development."26
Moreover, Sec. 6-c of EO 513 states that the PPA has police authority within the ports administered
by it as may be necessary to carry out its powers and functions and attain its purposes and objec-
tives, without prejudice to the exercise of the functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police authority shall include the following:
xxxx
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as
well as movement within the port of watercraft.27
Lastly, as a member of the International Marine Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships, as amended by MARPOL 73/78,28 the Philip-
pines, through the PPA, must ensure the provision of adequate reception facilities at ports and termi-
nals for the reception of sewage from the ships docking in Philippine ports. Thus, the PPA is tasked
to adopt such measures as are necessary to prevent the discharge and dumping of solid and liquid
wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators. When the vessels are not docked at ports but within Philippine territorial
waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill
and solid waste and liquid disposal system as well as other alternative garbage disposal systems. It is
primarily responsible for the implementation and enforcement of the provisions of RA 9003, which
would necessary include its penal provisions, within its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are
dumping of waste matters in public places, such as roads, canals or esteros, open burning of solid
waste, squatting in open dumps and landfills, open dumping, burying of biodegradable or non-
biodegradable materials in flood-prone areas, establishment or operation of open dumps as enjoined in
RA 9003, and operation of waste management facilities without an environmental compliance certifi-
cate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition
may be allowed "when persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks, roads,
parks and playgrounds." The MMDA, as lead agency, in coordination with the DPWH, LGUs, and con-
cerned agencies, can dismantle and remove all structures, constructions, and other encroachments
built in breach of RA 7279 and other pertinent laws along the rivers, waterways, and esteros in
Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite,
and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall direct
the concerned LGUs to implement the demolition and removal of such structures, constructions, and
other encroachments built in violation of RA 7279 and other applicable laws in coordination with the
DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to
promulgate rules and regulations for the establishment of waste disposal areas that affect the source
of a water supply or a reservoir for domestic or municipal use. And under Sec. 8 of RA 9275, the
DOH, in coordination with the DENR, DPWH, and other concerned agencies, shall formulate guidelines
and standards for the collection, treatment, and disposal of sewage and the establishment and opera-
tion of a centralized sewage treatment system. In areas not considered as highly urbanized cities,
septage or a mix sewerage-septage management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.131
of Chapter XVII of its implementing rules, the DOH is also ordered to ensure the regulation and moni-
toring of the proper disposal of wastes by private sludge companies through the strict enforcement
of the requirement to obtain an environmental sanitation clearance of sludge collection treatment and
disposal before these companies are issued their environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is
mandated to integrate subjects on environmental education in its school curricula at all levels.32 Un-
der Sec. 118 of RA 8550, the DepEd, in collaboration with the DA, Commission on Higher Education,
and Philippine Information Agency, shall launch and pursue a nationwide educational campaign to pro-
mote the development, management, conservation, and proper use of the environment. Under the
Ecological Solid Waste Management Act (RA 9003), on the other hand, it is directed to strengthen
the integration of environmental concerns in school curricula at all levels, with an emphasis on waste
management principles.33
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the
Administrative Code of 1987 to ensure the efficient and sound utilization of government funds and
revenues so as to effectively achieve the country’s development objectives.34
One of the country’s development objectives is enshrined in RA 9275 or the Philippine Clean Water
Act of 2004. This law stresses that the State shall pursue a policy of economic growth in a manner
consistent with the protection, preservation, and revival of the quality of our fresh, brackish, and
marine waters. It also provides that it is the policy of the government, among others, to streamline
processes and procedures in the prevention, control, and abatement of pollution mechanisms for the
protection of water resources; to promote environmental strategies and use of appropriate economic
instruments and of control mechanisms for the protection of water resources; to formulate a holistic
national program of water quality management that recognizes that issues related to this manage-
ment cannot be separated from concerns about water sources and ecological protection, water sup-
ply, public health, and quality of life; and to provide a comprehensive management program for water
pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of
RA 9275 in line with the country’s development objectives.
All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate of each agency/petitioner under the law. We
need not belabor the issue that their tasks include the cleanup of the Manila Bay.
95
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the
cleanup of water pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree
where its state will adversely affect its best usage, the government agencies concerned shall take
such measures as may be necessary to upgrade the quality of such water to meet the prescribed
water quality standards.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove and
clean-up water pollution incidents at his own expense. In case of his failure to do so, the government
agencies concerned shall undertake containment, removal and clean-up operations and expenses in-
curred in said operations shall be charged against the persons and/or entities responsible for such
pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the coun-
terpart provision (Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, how-
ever, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––Notwithstanding the provisions of Sections 15 and 26 hereof, any
person who causes pollution in or pollutes water bodies in excess of the applicable and prevailing
standards shall be responsible to contain, remove and clean up any pollution incident at his own ex-
pense to the extent that the same water bodies have been rendered unfit for utilization and benefi-
cial use: Provided, That in the event emergency cleanup operations are necessary and the polluter
fails to immediately undertake the same, the [DENR] in coordination with other government agencies
concerned, shall undertake containment, removal and cleanup operations. Expenses incurred in said
operations shall be reimbursed by the persons found to have caused such pollution under proper
administrative determination x x x. Reimbursements of the cost incurred shall be made to the Water
Quality Management Fund or to such other funds where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real
since the amendment, insofar as it is relevant to this case, merely consists in the designation of the
DENR as lead agency in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves
only with the matter of cleaning up in specific pollution incidents, as opposed to cleanup in general.
They aver that the twin provisions would have to be read alongside the succeeding Sec. 62(g) and
(h), which defines the terms "cleanup operations" and "accidental spills," as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled
in water to restore it to pre-spill condition.
h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from
accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government
agencies concerned to undertake containment, removal, and cleaning operations of a specific polluted
portion or portions of the body of water concerned. They maintain that the application of said Sec.
20 is limited only to "water pollution incidents," which are situations that presuppose the occurrence
of specific, isolated pollution events requiring the corresponding containment, removal, and cleaning
operations. Pushing the point further, they argue that the aforequoted Sec. 62(g) requires "cleanup
operations" to restore the body of water to pre-spill condition, which means that there must have
been a specific incident of either intentional or accidental spillage of oil or other hazardous sub-
stances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the
application of Sec. 20 to the containment, removal, and cleanup operations for accidental spills only.
Contrary to petitioners’ posture, respondents assert that Sec. 62(g), in fact, even expanded the
coverage of Sec. 20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed
covered only pollution accumulating from the day-to-day operations of businesses around the Manila
Bay and other sources of pollution that slowly accumulated in the bay. Respondents, however, em-
phasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the operational
scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated
in Sec. 17 in relation to Sec. 20 of PD 1152.
To respondents, petitioners’ parochial view on environmental issues, coupled with their narrow reading
of their respective mandated roles, has contributed to the worsening water quality of the Manila Bay.
Assuming, respondents assert, that petitioners are correct in saying that the cleanup coverage of
Sec. 20 of PD 1152 is constricted by the definition of the phrase "cleanup operations" embodied in
Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the phrases "cleanup
operations" and "accidental spills" do not appear in said Sec. 17, not even in the chapter where said
section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government
agencies concerned ought to confine themselves to the containment, removal, and cleaning opera-
tions when a specific pollution incident occurs. On the contrary, Sec. 17 requires them to act even in
the absence of a specific pollution incident, as long as water quality "has deteriorated to a degree
where its state will adversely affect its best usage." This section, to stress, commands concerned
government agencies, when appropriate, "to take such measures as may be necessary to meet the
prescribed water quality standards." In fine, the underlying duty to upgrade the quality of water is
not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly
applicable to a specific situation in which the pollution is caused by polluters who fail to clean up the
mess they left behind. In such instance, the concerned government agencies shall undertake the
cleanup work for the polluters’ account. Petitioners’ assertion, that they have to perform cleanup
operations in the Manila Bay only when there is a water pollution incident and the erring polluters do
not undertake the containment, removal, and cleanup operations, is quite off mark. As earlier dis-
cussed, the complementary Sec. 17 of the Environment Code comes into play and the specific duties
of the agencies to clean up come in even if there are no pollution incidents staring at them. Petition-
ers, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the
pretext that their cleanup mandate depends on the happening of a specific pollution incident. In this
regard, what the CA said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once
valid as it is practical. The appellate court wrote: "PD 1152 aims to introduce a comprehensive pro-
gram of environmental protection and management. This is better served by making Secs. 17 & 20
of general application rather than limiting them to specific pollution incidents."35
Granting arguendo that petitioners’ position thus described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that the pollution of the Manila Bay is of such magni-
96
tude and scope that it is well-nigh impossible to draw the line between a specific and a general pollu-
tion incident. And such impossibility extends to pinpointing with reasonable certainty who the pol-
luters are. We note that Sec. 20 of PD 1152 mentions "water pollution incidents" which may be
caused by polluters in the waters of the Manila Bay itself or by polluters in adjoining lands and in
water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand, specifi-
cally adverts to "any person who causes pollution in or pollutes water bodies," which may refer to an
individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such
that the contaminants eventually end up in the bay. In this situation, the water pollution incidents are
so numerous and involve nameless and faceless polluters that they can validly be categorized as
beyond the specific pollution incident level.
Not to be ignored of course is the reality that the government agencies concerned are so under-
manned that it would be almost impossible to apprehend the numerous polluters of the Manila Bay. It
may perhaps not be amiss to say that the apprehension, if any, of the Manila Bay polluters has been
few and far between. Hence, practically nobody has been required to contain, remove, or clean up a
given water pollution incident. In this kind of setting, it behooves the Government to step in and
undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152, covers for
all intents and purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-
term solution. The preservation of the water quality of the bay after the rehabilitation process is as
important as the cleaning phase. It is imperative then that the wastes and contaminants found in the
rivers, inland bays, and other bodies of water be stopped from reaching the Manila Bay. Otherwise,
any cleanup effort would just be a futile, cosmetic exercise, for, in no time at all, the Manila Bay
water quality would again deteriorate below the ideal minimum standards set by PD 1152, RA 9275,
and other relevant laws. It thus behooves the Court to put the heads of the petitioner-department-
agencies and the bureaus and offices under them on continuing notice about, and to enjoin them to
perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of
its water to the ideal level. Under what other judicial discipline describes as "continuing mandamus,"36
the Court may, under extraordinary circumstances, issue directives with the end in view of ensuring
that its decision would not be set to naught by administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce directives of the court to clean up the length
of the Ganges River from industrial and municipal pollution.37
The Court can take judicial notice of the presence of shanties and other unauthorized structures
which do not have septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region
(NCR) (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Mey-
cuayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Lagu-
na De Bay, and other minor rivers and connecting waterways, river banks, and esteros which dis-
charge their waters, with all the accompanying filth, dirt, and garbage, into the major rivers and even-
tually the Manila Bay. If there is one factor responsible for the pollution of the major river systems
and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of
illegal or unauthorized structures is not seriously addressed with sustained resolve, then practically all
efforts to cleanse these important bodies of water would be for naught. The DENR Secretary said as
much.38
Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067
or the Water Code,39 which prohibits the building of structures within a given length along banks of
rivers and other waterways. Art. 51 reads:
The banks of rivers and streams and the shores of the seas and lakes throughout their entire length
and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and
forty (40) meters in forest areas, along their margins, are subject to the easement of public use in
the interest of recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay
in this zone longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to
build structures of any kind. (Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial establishments standing along
or near the banks of the Pasig River, other major rivers, and connecting waterways. But while they
may not be treated as unauthorized constructions, some of these establishments undoubtedly con-
tribute to the pollution of the Pasig River and waterways. The DILG and the concerned LGUs, have,
accordingly, the duty to see to it that non-complying industrial establishments set up, within a rea-
sonable period, the necessary waste water treatment facilities and infrastructure to prevent their
industrial discharge, including their sewage waters, from flowing into the Pasig River, other major
rivers, and connecting waterways. After such period, non-complying establishments shall be shut down
or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply
with their statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage
problem in Metro Manila, the results of which are embodied in the The Garbage Book. As there re-
ported, the garbage crisis in the metropolitan area is as alarming as it is shocking. Some highlights of
the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic
liquids that flow along the surface and seep into the earth and poison the surface and groundwater
that are used for drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of a large amount of human waste in the
dump sites and surrounding areas, which is presumably generated by households that lack alternatives
to sanitation. To say that Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of
pathogens seeps untreated into ground water and runs into the Marikina and Pasig River systems and
Manila Bay.40
Given the above perspective, sufficient sanitary landfills should now more than ever be established as
prescribed by the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken
of the blatant violations by some LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.––No open dumps shall be estab-
lished and operated, nor any practice or disposal of solid waste by any person, including LGUs which
[constitute] the use of open dumps for solid waste, be allowed after the effectivity of this Act: Pro-
vided, further that no controlled dumps shall be allowed (5) years following the effectivity of this
Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which
ended on February 21, 2006 has come and gone, but no single sanitary landfill which strictly com-
plies with the prescribed standards under RA 9003 has yet been set up.
97
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping
of waste matters in roads, canals, esteros, and other public places, operation of open dumps, open
burning of solid waste, and the like. Some sludge companies which do not have proper disposal facili-
ties simply discharge sludge into the Metro Manila sewerage system that ends up in the Manila Bay.
Equally unabated are violations of Sec. 27 of RA 9275, which enjoins the pollution of water bodies,
groundwater pollution, disposal of infectious wastes from vessels, and unauthorized transport or
dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which pro-
scribes the introduction by human or machine of substances to the aquatic environment including
"dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of
petroleum of carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid,
gaseous or solid substances, from any water, land or air transport or other human-made structure."
In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme
necessity for all concerned executive departments and agencies to immediately act and discharge
their respective official duties and obligations. Indeed, time is of the essence; hence, there is a need
to set timetables for the performance and completion of the tasks, some of them as defined for
them by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot
be over-emphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor
and bring back the plants and sea life that once thrived in its blue waters. But the tasks ahead,
daunting as they may be, could only be accomplished if those mandated, with the help and coopera-
tion of all civic-minded individuals, would put their minds to these tasks and take responsibility. This
means that the State, through petitioners, has to take the lead in the preservation and protection of
the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work before the problem at hand becomes unman-
ageable. Thus, we must reiterate that different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating
the Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims: (1) that there
ought to be a specific pollution incident before they are required to act; and (2) that the cleanup of
the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste man-
agement. It implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the
State shall protect and advance the right of the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful
ecology need not even be written in the Constitution for it is assumed, like other civil and political
rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications.41 Even assuming the absence of a cat-
egorical legal provision specifically prodding petitioners to clean up the bay, they and the men and
women representing them cannot escape their obligation to future generations of Filipinos to keep
the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a be-
trayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No.
76528 and SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No.
1851-99 are AFFIRMED but with MODIFICATIONS in view of subsequent developments or supervening
events in the case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies
to clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level
(Class B sea waters per Water Classification Tables under DENR Administrative Order No. 34 [1990])
to make them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the
conservation, management, development, and proper use of the country’s environment and natural
resources, and Sec. 19 of RA 9275, designating the DENR as the primary government agency respon-
sible for its enforcement and implementation, the DENR is directed to fully implement its Operational
Plan for the Manila Bay Coastal Strategy for the rehabilitation, restoration, and conservation of the
Manila Bay at the earliest possible time. It is ordered to call regular coordination meetings with con-
cerned government departments and agencies to ensure the successful implementation of the afore-
said plan of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the
Local Government Code of 1991,42 the DILG, in exercising the President’s power of general supervi-
sion and its duty to promulgate guidelines in establishing waste management programs under Sec. 43
of the Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna,
Cavite, Bulacan, Pampanga, and Bataan to inspect all factories, commercial establishments, and private
homes along the banks of the major river systems in their respective areas of jurisdiction, such as
but not limited to the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote, Las Piñas) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and water-
ways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to deter-
mine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by
existing laws, ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up said facilities or septic tanks within a
reasonable time to prevent industrial wastes, sewage water, and human wastes from flowing into
these rivers, waterways, esteros, and the Manila Bay, under pain of closure or imposition of fines and
other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to provide, install, operate, and
maintain the necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite
where needed at the earliest possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local water districts and in coordination with the
DENR, is ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the
efficient and safe collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite,
Bulacan, Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is ordered to improve and restore
the marine life of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga, and Bataan in developing, using recognized methods, the fisheries and
aquatic resources in the Manila Bay.
98
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with
Sec. 124 of RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550,
and other existing laws and regulations designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to immediately adopt such measures to prevent the dis-
charge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay
waters from vessels docked at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control
projects and drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs,
PNP Maritime Group, Housing and Urban Development Coordinating Council (HUDCC), and other agen-
cies, shall dismantle and remove all structures, constructions, and other encroachments established or
built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-San Juan Rivers, the
NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, and con-
necting waterways and esteros in Metro Manila. The DPWH, as the principal implementor of programs
and projects for flood control services in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies, shall remove and demolish all structures, con-
structions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into
the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed
by RA 9003, within a period of one (1) year from finality of this Decision. On matters within its
territorial jurisdiction and in connection with the discharge of its duties on the maintenance of sani-
tary landfills and like undertakings, it is also ordered to cause the apprehension and filing of the ap-
propriate criminal cases against violators of the respective penal provisions of RA 9003,47 Sec. 27 of
RA 9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year
from finality of this Decision, determine if all licensed septic and sludge companies have the proper
facilities for the treatment and disposal of fecal sludge and sewage coming from septic tanks. The
DOH shall give the companies, if found to be non-complying, a reasonable time within which to set up
the necessary facilities under pain of cancellation of its environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 the
DepEd shall integrate lessons on pollution prevention, waste management, environmental protection,
and like subjects in the school curricula of all levels to inculcate in the minds and hearts of students
and, through them, their parents and friends, the importance of their duty toward achieving and
maintaining a balanced and healthful ecosystem in the Manila Bay and the entire Philippine ar-
chipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of
2010 and succeeding years to cover the expenses relating to the cleanup, restoration, and preserva-
tion of the water quality of the Manila Bay, in line with the country’s development objective to attain
economic growth in a manner consistent with the protection, preservation, and revival of our marine
waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Mar-
itime Group, DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing man-
damus," shall, from finality of this Decision, each submit to the Court a quarterly progressive report
of the activities undertaken in accordance with this Decision.
No costs.
SO ORDERED.
G.R. No. 196870               June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in the
Constitution and pertinent laws, such as the protection of the environment, the empowerment of the
local government units, the promotion of tourism, and the encouragement of the participation of the
private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared goals within the context of our Constitution,
laws and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Envi-
ronmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic corporation.
Its primary purpose is "to foster a united, concerted and environment-conscious development of Bo-
racay Island, thereby preserving and maintaining its culture, natural beauty and ecological balance,
marking the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and
the whole world."1 It counts among its members at least sixty (60) owners and representatives of
resorts, hotels, restaurants, and similar institutions; at least five community organizations; and several
environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province) is a political subdivision of the government cre-
ated pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial
Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by Presidential Decree No. 1084,3 which states that
one of the purposes for which respondent PRA was created was to reclaim land, including foreshore
and submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation
projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President
of the Philippines issued Executive Order No. 543, delegating the power "to approve reclamation
projects to PRA through its governing Board, subject to compliance with existing laws and rules and
99
further subject to the condition that reclamation contracts to be executed with any person or entity
(must) go through public bidding."4
Respondent Department of Environment and Natural Resources – Environmental Management Bureau
(DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental compliance certificates regarding projects that re-
quire the environment’s protection and management in the region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines
and one of the country’s most popular tourist destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No. 1801.6 The island comprises the barangays of
Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island itself is known to come from the uplifted rem-
nants of an ancient reef platform. Its beaches, the sandy land strip between the water and the area
currently occupied by numerous establishments, is the primary draw for domestic and international
tourists for its color, texture and other unique characteristics. Needless to state, it is the premier
domestic and international tourist destination in the Philippines.8
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty
Port and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Province
operates both ports "to provide structural facilities suited for locals, tourists and guests and to pro-
vide safety and security measures."9
In 2005, Boracay 2010 Summit was held and participated in by representatives from national gov-
ernment agencies, local government units (LGUs), and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit aimed "to re-establish a common vision of all stake-
holders to ensure the conservation, restoration, and preservation of Boracay Island" and "to develop
an action plan that [would allow] all sectors to work in concert among and with each other for the
long term benefit and sustainability of the island and the community."10 The Summit yielded a Termi-
nal Report11 stating that the participants had shared their dream of having world-class land, water and
air infrastructure, as well as given their observations that government support was lacking, in-
frastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The
Report showed that there was a need to expand the port facilities at Caticlan due to congestion in
the holding area of the existing port, caused by inadequate facilities, thus tourists suffered long
queues while waiting for the boat ride going to the island.12
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009
and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the
years to come. Thus, respondent Province conceptualized the expansion of the port facilities at
Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 200814 on April
25, 2008 stating that it had learned that respondent Province had filed an application with the DENR
for a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong
opposition to said application, as the proposed foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once granted,
and depriving its constituents of their statutory right of preference in the development and utilization
of the natural resources within its jurisdiction. The resolution further stated that respondent Province
did not conduct any consultations with the Sangguniang Barangay of Caticlan regarding the proposed
foreshore lease, which failure the Sanggunian considered as an act of bad faith on the part of re-
spondent Province.15
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution
No. 2008-369,16 formally authorizing Governor Marquez to enter into negotiations towards the possi-
bility of effecting self-liquidating and income-producing development and livelihood projects to be
financed through bonds, debentures, securities, collaterals, notes or other obligations as provided
under Section 299 of the Local Government Code, with the following priority projects: (a) renovation/
rehabilitation of the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclama-
tion of a portion of Caticlan foreshore for commercial purposes.17 This step was taken as respondent
Province’s existing jetty port and passenger terminal was funded through bond flotation, which was
successfully redeemed and paid ahead of the target date. This was allegedly cited as one of the
LGU’s Best Practices wherein respondent Province was given the appropriate commendation.18
Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its
2009 Annual Investment Plan,19 envisioned as its project site the area adjacent to the existing jetty
port, and identified additional areas along the coastline of Barangay Caticlan as the site for future
project expansion.20
Governor Marquez sent a letter to respondent PRA on March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Cati-
clan, Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial Advisor/
Consultant that won in the bidding process held a month before, to conduct the necessary feasibility
study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger Terminal
Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation of a
Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province issued Resolu-
tion No. 2009–110,23 which authorized Governor Marquez to file an application to reclaim the 2.64
hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which fo-
cused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the
old Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its future
plans – the construction of commercial building and wellness center. The financial component of the
said study was Two Hundred Sixty Million Pesos (₱260,000,000.00). Its suggested financing scheme
was bond flotation.24
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the
intended foreshore lease application, through Resolution No. 044,25 approved on July 22, 2009, mani-
festing therein that respondent Province’s foreshore lease application was for business enterprise
purposes for its benefit, at the expense of the local government of Malay, which by statutory provi-
sions was the rightful entity "to develop, utilize and reap benefits from the natural resources found
within its jurisdiction."26
100
In August 2009, a Preliminary Geohazard Assessment27 for the enhancement/expansion of the existing
Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was completed.
Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program
(EPRMP)28 to DENR-EMB RVI, which he had attached to his letter29 dated September 19, 2009, as an
initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next month, the province hereby
assures your good office that it will give preferential attention to and shall comply with whatever
comments that you may have on this EPRMP.30 (Emphasis added.)
Respondent Province was then authorized to issue "Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclama-
tion of a portion of the foreshore lease area for commercial purposes in Malay, Aklan through Pro-
vincial Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized
Governor Marquez to negotiate, sign and execute agreements in relation to the issuance of the Cati-
clan Super Marina Bonds in the amount not exceeding ₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No.
2009-01532 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and appropri-
ate the entire proceeds of said bonds for the project, and further authorizing Governor Marquez to
negotiate, sign and execute contracts or agreements pertinent to the transaction.33
Within the same month of October 2009, respondent Province deliberated on the possible expansion
from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maxi-
mize the utilization of its resources and as a response to the findings of the Preliminary Geohazard
Assessment study which showed that the recession and retreat of the shoreline caused by coastal
erosion and scouring should be the first major concern in the project site and nearby coastal area.
The study likewise indicated the vulnerability of the coastal zone within the proposed project site and
the nearby coastal area due to the effects of sea level rise and climate change which will greatly
affect the social, economic, and environmental situation of Caticlan and nearby Malay coastal commu-
nities.34
In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative
to our request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and
Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result of our discus-
sion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully submit
a revised Reclamation Project Description embodying certain revisions/changes in the size and location
of the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office that the bond flotation we have secured with
the Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14,
2009. This will pave the way for the implementation of said project. Briefly, the Province has been
recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan
obligations. x x x.
With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing
into such development project with the end in view of protection and/or restoring certain segments
of the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as re-
ported by experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for commer-
cial and tourism-related facilities and for other complementary uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-29936 au-
thorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent PRA in
the implementation of the Beach Zone Restoration and Protection Marina Development Project, which
shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay Caticlan and
Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and conditions of the
necessary agreements for the implementation of the bond flotation of respondent Province to fund
the renovation/rehabilitation of the existing jetty port by way of enhancement and recovery of the
Old Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount of
₱260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.39
On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the ques-
tioned ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along
the Caticlan side beside the existing jetty port.40
On May 17, 2010, respondent Province entered into a MOA41 with respondent PRA. Under Article III,
the Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of
the Municipality of Malay x x x.
The land use development of the reclamation project shall be for commercial, recreational and institu-
tional and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
"information-education campaigns," which provided the venue for interaction and dialogue with the
public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of
Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan Plaza;46
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay –
Mayor John P. Yap;47
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development Council
Executive Committee;48 and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and Petition-
er.49
Petitioner claims that during the "public consultation meeting" belatedly called by respondent Province
on June 17, 2010, respondent Province presented the Reclamation Project and only then detailed the
101
actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds;
the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40)
hectares from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated
its strong opposition to respondent Province’s project and denied its request for a favorable en-
dorsement of the Marina Project.51
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3,
2010, to request respondent PRA "not to grant reclamation permit and notice to proceed to the
Marina Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay,
Aklan."52
In a letter53 dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered
based on the documents submitted by respondent Province to obtain the ECC, a full EIA study is
required to assess the reclamation project’s likelihood of rendering critical and lasting effect on Bora-
cay considering the proximity in distance, geographical location, current and wind direction, and many
other environmental considerations in the area. Petitioner noted that said documents had failed to
deal with coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply
with certain mandatory provisions of the Local Government Code, particularly, those requiring the
project proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to
the reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.54
Petitioner alleges that despite the Malay Municipality’s denial of respondent Province’s request for a
favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the implementation of the Reclamation
Project.55
On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No.
046, s. 2010, of the Municipality of Malay and manifested its support for the implementation of the
aforesaid project through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution
No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter
to proceed with the reclamation and development of phase 1 of site 1 of its proposed project. Re-
spondent PRA attached to said letter its Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent PRA’s letter dated October 19, 2010, which autho-
rized respondent Province to proceed with phase 1 of the reclamation project, subject to compliance
with the requirements of its Evaluation Report. The reclamation project was described as:
"[A] seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Cati-
clan with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total
area of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters
apart. x x x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034,59 addressed the apprehen-
sions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the implementation of
the project. Said resolution stated that the apprehensions of petitioner with regard to the economic,
social and political negative impacts of the projects were mere perceptions and generalities and were
not anchored on definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in November 2010 by several marine biologists/experts
from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to
determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the
coastal erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan.60
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehen-
sions of petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to
commence with the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives,
Food, Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI
was discussed.62 In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from
the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that
the subject project, consisting of 2.64 hectares, would only have insignificant effect on the hydrody-
namics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was a
distant possibility that it would affect the Boracay coastline, which includes the famous white-sand
beach of the island.63
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-06564
noting the report on the survey of the channel between Caticlan and Boracay conducted by the UPM-
SI in relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr.
Villanoy had admitted that nowhere in their study was it pointed out that there would be an adverse
effect on the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on
April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-
VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the
study conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is
primarily tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of respon-
dent Province would not significantly affect the flow in the channel and would unlikely impact the
Boracay beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Cati-
clan reclamation project on environmental grounds.66
On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of
the Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective comments to the peti-
tion.67
After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an
order to the Provincial Engineering Office and the concerned contractor to cease and desist from
conducting any construction activities until further orders from this Court.
102
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the reclamation project, failed to comply with relevant rules
and regulations in the acquisition of an ECC.
A. The reclamation project is co-located within environmentally critical areas requiring the performance
of a full, or programmatic, environmental impact assessment.
B. Respondent Province failed to obtain the favorable endorsement of the LGU concerned.
C. Respondent Province failed to conduct the required consultation procedures as required by the
Local Government Code.
D. Respondent Province failed to perform a full environmental impact assessment as required by law
and relevant regulations.
II.
The reclamation of land bordering the strait between Caticlan and Boracay shall adversely affect the
frail ecological balance of the area.68
Petitioner objects to respondent Province’s classification of the reclamation project as single instead
of co-located, as "non-environmentally critical," and as a mere "rehabilitation" of the existing jetty
port. Petitioner points out that the reclamation project is on two sites (which are situated on the
opposite sides of Tabon Strait, about 1,200 meters apart):
• 36.82 hectares – Site 1, in Bgy. Caticlan
• 3.18 hectares – Site 2, in Manoc-manoc, Boracay Island69
Phase 1, which was started in December 2010 without the necessary permits,70 is located on the
Caticlan side of a narrow strait separating mainland Aklan from Boracay. In the implementation of the
project, respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on the
entire 40 hectares. Thus, petitioner argues that respondent Province abused and exploited the Re-
vised Procedural Manual for DENR Administrative Order No. 30, Series of 2003 (DENR DAO
2003-30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under "Group II Projects-Non-ECP (environmentally critical project)
in ECA (environmentally critical area) based on the type and size of the area," and
2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS)72 or Program-
matic Environmental [Performance] Report Management Plan (PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is
based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is
patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because the
laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No.
2146, clearly indicate that projects in environmentally critical areas are to be immediately considered
environmentally critical. Petitioner complains that respondent Province applied for an ECC only for
Phase 1; hence, unlawfully
evading the requirement that co-located projects74 within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a
Non-ECP in an ECA, and as a single project instead of a co-located one. The impact assessment al-
legedly performed gives a patently erroneous and wrongly-premised appraisal of the possible environ-
mental impact of the reclamation project. Petitioner contends that respondent Province’s choice of
classification was designed to avoid a comprehensive impact assessment of the reclamation project.
Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its
duty to ensure that the environment is protected from harmful developmental projects because it
allegedly performed only a cursory and superficial review of the documents submitted by the respon-
dent Province for an ECC, failing to note that all the information and data used by respondent Prov-
ince in its application for the ECC were all dated and not current, as data was gathered in the late
1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that respondent
DENR-EMB RVI ignored the environmental impact to Boracay, which involves changes in the structure
of the coastline that could contribute to the changes in the characteristics of the sand in the beach-
es of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of the reclamation project is for the exploitation
of Boracay’s tourist trade, since the project is intended to enhance support services thereto. But,
petitioner argues, the primary reason for Boracay’s popularity is its white-sand beaches which will be
negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable en-
dorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation pro-
cedures as required by the Local Government Code.75 Petitioner asserts that the reclamation project is
in violation not only of laws on EIS but also of the Local Government Code as respondent Province
failed to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-
Malay Chapter also expressed strong opposition against the project.76
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the
project or program may cause pollution, climactic change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored the LGUs’ opposition expressed as early as
2008. Not only that, respondent Province belatedly called for public "consultation meetings" on June
17 and July 28, 2010, after an ECC had already been issued and the MOA between respondents PRA
and Province had already been executed. As the petitioner saw it, these were not consultations but
mere "project presentations."
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB,
ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental
projects are in line with sustainable development of natural resources. The project was conceptualized
without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues
that while it is true that as of now, only the Caticlan side has been issued an ECC, the entire project
involves the Boracay side, which should have been considered a co-located project. Petitioner claims
that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will
affect Boracay and Caticlan as they are separated only by a narrow strait; thus, it should be consid-
ered an ECP. Therefore, the ECC and permit issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to
the reclamation project will likely divert sand transport off the southwest part of Boracay, whereas
the characteristic coast of the Caticlan side of the strait indicate stronger sediment transport.77 The
103
white-sand beaches of Boracay and its surrounding marine environment depend upon the natural flow
of the adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay
shall adversely affect the frail ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the reclamation project on the land, it is
undeniable that it will also adversely affect the already frail ecological balance of the area. The effect
of the project would have been properly assessed if the proper EIA had been performed prior to any
implementation of the project.
According to petitioner, respondent Province’s intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment78 dated June 21, 2011, respondent Province claimed that application for reclamation
of 40 hectares is advantageous to the Provincial Government considering that its filing fee would only
cost Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under
Section 4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for
lack of cause of action due to the failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent Province, the petition primarily
assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project consist-
ing of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent Prov-
ince to submit proper documentation as required for its issuance. Hence, the grounds relied upon by
petitioner can be addressed within the confines of administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30
(DAO 2003-30),80 the issuance of an ECC81 is an official decision of DENR-EMB RVI on the application
of a project proponent.82 It cites Section 6 of DENR DAO 2003-30, which provides for a remedy
available to the party aggrieved by the final decision on the proponent’s ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to
petitioner’s unfounded fears and baseless apprehensions. It is respondent Province’s contention that
its 2.64-hectare reclamation project is considered as a "stand alone project," separate and indepen-
dent from the approved area of 40 hectares. Thus, petitioner should have observed the difference
between the "future development plan" of respondent Province from its "actual project" being under-
taken.83
Respondent Province clearly does not dispute the fact that it revised its original application to re-
spondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of its
future plan, and implementation thereof is "still subject to availability of funds, independent scientific
environmental study, separate application of ECC and notice to proceed to be issued by respondent
PRA."84
Respondent Province goes on to claim that "[p]etitioner’s version of the Caticlan jetty port expansion
project is a bigger project which is still at the conceptualization stage. Although this project was
described in the Notice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in
Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty
port expansion project."85
Respondent Province says that the Accomplishment Report86 of its Engineering Office would attest
that the actual project consists of 2.64 hectares only, as originally planned and conceptualized, which
was even reduced to 2.2 hectares due to some construction and design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRA’s Evaluation Report87 dated October 18, 2010, which was in
turn the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the
project’s financial component is ₱260,000,000.00 only. Said Evaluation Report indicates that the
implementation of the other phases of the project including site 2, which consists of the other por-
tions of the 40-hectare area that includes a portion in Boracay, is still within the 10-year period and
will depend largely on the availability of funds of respondent Province.88
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into
phases in order to determine the period of its implementation. Each phase was separate and indepen-
dent because the source of funds was also separate. The required documents and requirements were
also specific for each phase. The entire approved area of 40 hectares could be implemented within a
period of 10 years but this would depend solely on the availability of funds.89
As far as respondent Province understands it, additional reclamations not covered by the ECC, which
only approved 2.64 hectares, should undergo another EIA. If respondent Province intends to com-
mence the construction on the other component of the 40 hectares, then it agrees that it is man-
dated to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned
and was at present only financially equipped and legally compliant to undertake 2.64 hectares of the
project, and only as an expansion of its old jetty port.91
Respondent Province claims that it has complied with all the necessary requirements for securing an
ECC. On the issue that the reclamation project is within an ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40 hectares
is only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and
authority. From the beginning, its intention was to rehabilitate and expand the existing jetty port
terminal to accommodate an increasing projected traffic. The subject project is specifically classified
under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type con-
sidered as Minor Reclamation Projects falling under Group II – Non ECP in an ECA. Whether 2.64 or 40
hectares in area, the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation
project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the ap-
proved 40-hectare area as it is originally planned for the expansion site of the existing Caticlan jetty
port. At present, it has no definite conceptual construction plan of the said portion in Boracay and it
has no financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the
alleged component that falls within an ECA is in Boracay. Considering its geographical location, the
two sites cannot be considered as a contiguous area for the reason that it is separated by a body of
water – a strait that traverses between the mainland Panay wherein Caticlan is located and Boracay.
Hence, it is erroneous to consider the two sites as a co-located project within an ECA. Being a
"stand alone project" and an expansion of the existing jetty port, respondent DENR-EMB RVI had
104
required respondent Province to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b),
page 7 of DENR DAO 2003-30.
Respondent Province contends that even if, granting for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-
EMB RVI, which was the administrator of the EIS system, had the final decision on this matter. Under
DENR DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is con-
ducted, shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to deny
said application. Its Regional Director could either issue an ECC for the project or deny the applica-
tion. He may also require a more comprehensive EIA study. The Regional Director issued the ECC
based on the EPRMP submitted by respondent Province and after the same went through the EIA
review process.
Thus, respondent Province concludes that petitioner’s allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation project is still on the conceptualization stage.
Both respondents PRA and Province are yet to complete studies and feasibility studies to embark on
another project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.92
With regard to petitioner’s allegation that respondent Province failed to get the favorable endorse-
ment of the concerned LGUs in violation of the Local Government Code, respondent Province con-
tends that consultation vis-à-vis the favorable endorsement from the concerned LGUs as contemplat-
ed under the Local Government Code are merely tools to seek advice and not a power clothed upon
the LGUs to unilaterally approve or disapprove any government projects. Furthermore, such endorse-
ment is not necessary for projects falling under Category B2 unless required by the DENR-EMB RVI,
under Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have con-
ducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local Govern-
ment Code. The vehement and staunch objections of both the Sangguniang Barangay of Caticlan and
the Sangguniang Bayan of Malay, according to respondent Province, were not rooted on its perceived
impact upon the people and the community in terms of environmental or ecological balance, but due
to an alleged conflict with their "principal position to develop, utilize and reap benefits from the nat-
ural resources found within its jurisdiction."93 Respondent Province argues that these concerns are not
within the purview of the Local Government Code. Furthermore, the Preliminary Geohazard Assess-
ment Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and
2010-034 should address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government
Code is to create an avenue for parties, the proponent and the LGU concerned, to come up with a
tool in harmonizing its views and concerns about the project. The duty to consult does not automati-
cally require adherence to the opinions during the consultation process. It is allegedly not within the
provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the
project in the guise of requiring the proponent of securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without providing an alternative resolution to harmonize its
position and that of respondent Province.
Respondent Province claims that the EPRMP94 would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of ma-
rine support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty
to the shallowest point, there was no more coral patch and the substrate is sandy. It is of public
knowledge that the said foreshore area is being utilized by the residents ever since as berthing or
anchorage site of their motorized banca. There will be no possibility of any coral development therein
because of its continuous utilization. Likewise, the activity of the strait that traverses between the
main land Caticlan and Boracay Island would also be a factor of the coral development. Corals [may]
only be formed within the area if there is scientific human intervention, which is absent up to the
present.
In light of the foregoing premise, it casts serious doubt on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64 hectares reclamation project. The alleged environ-
mental impact of the subject project to the beaches of Boracay Island remains unconfirmed. Petition-
er had unsuccessfully proven that the project would cause imminent, grave and irreparable injury to
the community.95
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the
TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause ir-
reparable damage to the party or person enjoined, while the applicant may be fully compensated for
such damages as he may suffer and subject to the posting of a sufficient bond by the party or per-
son enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two
aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area, including
tourists and passengers serviced by the jetty port, brought about by the abrupt cessation of devel-
opment works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its creditors as the
financing scheme in funding the present project is by way of credit financing through bond flotation.
2. The funds are financed by a Guarantee Bank – getting payment from bonds, being sold to in-
vestors, which in turn would be paid by the income that the project would realize or incur upon its
completion.
3. While the project is under construction, respondent Province is appropriating a portion of its Inter-
nal Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and prin-
cipal amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the project’s
construction.
5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or
funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents.
96
As to the second ground for the dissolution of the TEPO, respondent Province argues:
105
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most especially
that reclaimed land if not properly secured may be eroded into the sea.
2. The construction has accomplished 65.26 percent of the project. The embankment that was de-
posited on the project has no proper concrete wave protection that might be washed out in the
event that a strong typhoon or big waves may occur affecting the strait and the properties along the
project site. It is already the rainy season and there is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to environ-
mental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.97
Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable
injury or damage from the ongoing project. The petitioner’s perceived fear of environmental destruc-
tion brought about by its erroneous appreciation of available data is unfounded and does not trans-
late into a matter of extreme urgency. Thus, under the Rules of Procedure on Environmental Cases,
the TEPO may be dissolved.
Respondent PRA filed its Comment98 on June 22, 2011. It alleges that on June 24, 2006, Executive
Order No. 543 delegated the power "to approve reclamation projects to respondent PRA through its
governing Board, subject to compliance with existing laws and rules and further subject to the condi-
tion that reclamation contracts to be executed with any person or entity (must) go through public
bidding."
Section 4 of respondent PRA’s Administrative Order No. 2007-2 provides for the approval process
and procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Eval-
uation Report on November 5, 200999 regarding Aklan’s proposal to increase its project to 40
hectares.
Respondent PRA contends that it was only after respondent Province had complied with the require-
ments under the law that respondent PRA, through its Board of Directors, approved the proposed
project under its Board Resolution No. 4094.100 In the same Resolution, respondent PRA Board autho-
rized the General Manager/CEO to execute a MOA with the Aklan provincial government to implement
the reclamation project under certain conditions.
The issue for respondent PRA was whether or not it approved the respondent Province’s 2.64-hectare
reclamation project proposal in willful disregard of alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law
and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the re-
quirements imposed by existing laws and regulations. It further contends that the 40 hectares in-
volved in this project remains a plan insofar as respondent PRA is concerned. What has been ap-
proved for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation project. Re-
spondent PRA reiterates that it approved this reclamation project after extensively reviewing the
legal, technical, financial, environmental, and operational aspects of the proposed reclamation.102
One of the conditions that respondent PRA Board imposed before approving the Aklan project was
that no reclamation work could be started until respondent PRA has approved the detailed engineer-
ing plans/methodology, design and specifications of the reclamation. Part of the required submissions
to respondent PRA includes the drainage design as approved by the Public Works Department and the
ECC as issued by the DENR, all of which the Aklan government must submit to respondent PRA be-
fore starting any reclamation works.103 Under Article IV(B)(3) of the MOA between respondent PRA
and Aklan, the latter is required to submit, apart from the ECC, the following requirements for re-
spondent PRA’s review and approval, as basis for the issuance of a Notice to Proceed (NTP) for
Reclamation Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for reclamation
works, reclamation plans and methodology, plans for the sources of fill materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost effec-
tive and efficient drainage system as may be required based on the results of the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland reclama-
tion components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for the project;
and,
(g) Project timetable (PERT/CPM) for the entire project construction period.104
In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA to
strictly comply with all conditions of the DENR-EMB-issued ECC "and/or comply with pertinent local
and international commitments of the Republic of the Philippines to ensure environmental
protection."105
In its August 11, 2010 letter,106 respondent PRA referred for respondent Province’s appropriate action
petitioner’s Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang
Bayan of Malay. Governor Marquez wrote respondent PRA107 on September 16, 2010 informing it that
respondent Province had already met with the different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such meetings/presentations. Governor Marquez also assured re-
spondent PRA that it had complied with the consultation requirements as far as Malay was concerned.
Respondent PRA claims that in evaluating respondent Province’s project and in issuing the necessary
NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and modernization,
respondent PRA gave considerable weight to all pertinent issuances, especially the ECC issued by
DENR-EMB RVI.108 Respondent PRA stresses that its earlier approval of the 40-hectare reclamation
project under its Resolution No. 4094, series of 2010, still requires a second level of compliance
requirements from the proponent. Respondent Province could not possibly begin its reclamation works
since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1 of
Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
106
Respondent PRA claims that it was only after the evaluation of the above submissions that it issued
to respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA
even emphasized in its evaluation report that should respondent Province pursue the other phases of
its project, it would still require the submission of an ECC for each succeeding phases before the
start of any reclamation works.110
Respondent PRA, being the national government’s arm in regulating and coordinating all reclamation
projects in the Philippines – a mandate conferred by law – manifests that it is incumbent upon it, in
the exercise of its regulatory functions, to diligently evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval. Once the reclamation project’s requirements set
forth by law and related rules have been complied with, respondent PRA is mandated to approve the
same. Respondent PRA claims, "[w]ith all the foregoing rigorous and detailed requirements submitted
and complied with by Aklan, and the attendant careful and meticulous technical and legal evaluation
by respondent PRA, it cannot be argued that the reclamation permit it issued to Aklan is ‘founded
upon numerous irregularities;’ as recklessly and baselessly imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the
ECC certifies that the project had undergone the proper EIA process by assessing, among others, the
direct and indirect impact of the project on the biophysical and human environment and ensuring that
these impacts are addressed by appropriate environmental protection and enhancement measures,
pursuant to Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and
the existing rules and regulations.113
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project
is not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part
of mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Procla-
mation No. 2146 (1981), being within the category of a water body. This was why respondent Prov-
ince had faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30
by submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were
the bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of
Caticlan Jetty Port and Passenger Terminal, covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in the
issuance of the Order115 dated January 26, 2010, disregarding the claim of the Municipality of Malay,
Aklan of a portion of the foreshore land in Caticlan covered by the application of the Province of
Aklan; and another Order of Rejection dated February 5, 2010 of the two foreshore applications,
namely FLA No. 060412-43A and FLA No. 060412-43B, of the Province of Aklan.116
Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion and modernization of the old jetty port in
Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay
Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009 addressed
to DENR-EMB RVI Regional Executive Director, would show that the reclamation project will cover
approximately 2.6 hectares.117 This application for ECC was not officially accepted due to lack of re-
quirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB
RVI looked at the documents submitted by respondent Province and saw that the subject area cov-
ered by the ECC application and subsequently granted with ECC-R6-1003-096-7100 consists only of
2.64 hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation
project under "Non ECP in ECA," this does not fall within the definition of a co-located project be-
cause the subject project is merely an expansion of the old Caticlan Jetty Port, which had a previous-
ly issued ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or
PEPRMP, is required.119
Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in
the EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB), Cen-
tral Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled "Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty Port
Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at
a best professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.120 Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative
impact with the surrounding environment particularly in Boracay, a more recent study was conducted,
and respondent DENR-EMB RVI alleges that "[i]t is very important to highlight that the input data in
the [MERF- UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width seaward using
the tidal and wave modelling."121 The study showed that the reclamation of 2.64 hectares had no
effect to the hydrodynamics of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC Applications;" that the EPRMP was evaluated
and processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for
LGUs to consider in its decision whether or not to issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate office,
EMB RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no "extreme
urgency that necessitates the granting of Mandamus or issuance of TEPO that put to balance be-
tween the life and death of the petitioner or present grave or irreparable damage to environment."123
After receiving the above Comments from all the respondents, the Court set the case for oral argu-
ments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion124 praying for
the dismissal of the petition, as the province was no longer pursuing the implementation of the suc-
ceeding phases of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence,
the issues and fears expressed by petitioner had become moot. Respondent Province alleges that the
petition is "premised on a serious misappreciation of the real extent of the contested reclamation
107
project" as certainly the ECC covered only a total of 2,691 square meters located in Barangay Cati-
clan, Malay, Aklan; and although the MOA spoke of 40 hectares, respondent Province’s submission of
documents to respondent PRA pertaining to said area was but the first of a two-step process of
approval. Respondent Province claims that its failure to comply with the documentary requirements of
respondent PRA within the period provided, or 120 working days from the effectivity of the MOA,
indicated its waiver to pursue the remainder of the project.125 Respondent Province further manifest-
ed:
Confirming this in a letter dated 12 August 2011,126 Governor Marquez informed respondent PRA that
the Province of Aklan is no longer "pursuing the implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the
MOA; hence, the existing MOA will cover only the project area of 2.64 hectares."
In his reply-letter dated August 22, 2011,127 [respondent] PRA General Manager informed Governor
Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares,
as evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all
along. Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40
hectares as feared. This completely changes the extent of the Project and, consequently, moots the
issues and fears expressed by the petitioner.128 (Emphasis supplied.)
Based on the above contentions, respondent Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared adverse effect to Boracay Island’s ecology had
become academic all together.129
The Court heard the parties’ oral arguments on September 13, 2011 and gave the latter twenty (20)
days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,130 which the Court received on April 2,
2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI before an ECC
was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative Order 2007-
2, which compliance caused respondent PRA’s Board to approve the reclamation project; and
3. it had conducted a series of "consultative [presentations]" relative to the reclamation project
before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of Boracay
Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted
on February 13, 2012 Resolution No. 003, series of 2012, entitled "Resolution Favorably Endorsing
the 2.6 Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coast-
line"131 and that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No.
020, series of 2012, entitled "Resolution Endorsing the 2.6 Hectares Reclamation Project of the Pro-
vincial Government of Aklan Located at Barangay Caticlan, Malay, Aklan."132
Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI
and PRA that led to the approval of the reclamation project by the said government agencies, as well
as the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the
Municipality of Malay favorably endorsing the said project, had "categorically addressed all the issues
raised by the Petitioner in its Petition dated June 1, 2011." Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after
due proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be lifted/dis-
solved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and academic
II. Whether or not the petition is premature because petitioner failed to exhaust administrative reme-
dies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws and regula-
tions based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the pertinent laws
and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the al-
leged favorable endorsement of the reclamation project by the Sangguniang Barangay of Caticlan and
the Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had already
been addressed, and this petition should be dismissed for being moot and academic.
On the contrary, a close reading of the two LGUs’ respective resolutions would reveal that they are
not sufficient to render the petition moot and academic, as there are explicit conditions imposed that
must be complied with by respondent Province. In Resolution No. 003, series of 2012, of the Sang-
guniang Barangay of Caticlan it is stated that "any vertical structures to be constructed shall be
subject for barangay endorsement."133 Clearly, what the barangay endorsed was the reclamation only,
and not the entire project that includes the construction of a commercial building and wellness cen-
ter, and other tourism-related facilities. Petitioner’s objections, as may be recalled, pertain not only to
the reclamation per se, but also to the building to be constructed and the entire project’s perceived
ill effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay134 is even more specific. It
reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of bene-
fits for the Local Government of Malay in terms of income and employment for its constituents, but
the fact cannot be denied that the project will take its toll on the environment especially on the
nearby fragile island of Boracay and the fact also remains that the project will eventually displace the
local transportation operators/cooperatives;
108
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee
where this matter was referred conducted several consultations/committee hearings with concerned
departments and the private sector specifically Boracay Foundation, Inc. and they are one in its belief
that this Local Government Unit has never been against development so long as compliance with the
law and proper procedures have been observed and that paramount consideration have been given to
the environment lest we disturb the balance of nature to the end that progress will be brought to
naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires
no less than transparency and faithful commitment from the Provincial Government of Aklan in the
process of going through these improvements in the Municipality because it once fell prey to infideli-
ties in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns,
this Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to
the end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not
beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the environ-
mental impact of the reclamation project especially during Habagat and Amihan seasons and put in
place as early as possible mitigating measures on the effect of the project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body
no choice but to revoke this endorsement, hence faithful compliance of the commitment of the Pro-
vincial Government is highly appealed for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to
comply with on pain of revocation of its endorsement of the project, including the need to conduct a
comprehensive study on the environmental impact of the reclamation project, which is the heart of
the petition before us. Therefore, the contents of the two resolutions submitted by respondent Prov-
ince do not support its conclusion that the subsequent favorable endorsement of the LGUs had al-
ready addressed all the issues raised and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioner’s failure
to exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the NTP, this involves factual and technical verifica-
tion, which are more properly within the expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from
receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle griev-
ances between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals
shall not be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority
Where to file the appeal
EMB Regional Office Director
Office of the EMB Director
EMB Central Office Director
Office of the DENR Secretary
DENR Secretary
Office of the President
(Emphases supplied.)
Respondents argue that since there is an administrative appeal provided for, then petitioner is duty
bound to observe the same and may not be granted recourse to the regular courts for its failure to
do so.
We do not agree with respondents’ appreciation of the applicability of the rule on exhaustion of ad-
ministrative remedies in this case. We are reminded of our ruling in Pagara v. Court of Appeals,136
which summarized our earlier decisions on the procedural requirement of exhaustion of administrative
remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not applica-
ble (1) where the question in dispute is purely a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as an alter ego of the President bear the implied
or assumed approval of the latter, unless actually disapproved by him, or (4) where there are circum-
stances indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897, October
22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA; Mitra vs.
Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate reme-
dy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed (Villanos vs.
Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez, 31
SCRA 637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof, if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the appropriate government agency has been a party
or has been made a party in the proceedings wherein the decision to be appealed was rendered. It
has been established by the facts that petitioner was never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only informed that the project had already been approved
after the ECC was already granted.138 Not being a party to the said proceedings, it does not appear
that petitioner was officially furnished a copy of the decision, from which the 15-day period to appeal
should be reckoned, and which would warrant the application of Section 6, Article II of DENR DAO
2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was ren-
dered, it stands to be aggrieved by the decision,139 because it claims that the reclamation of land on
109
the Caticlan side would unavoidably adversely affect the Boracay side, where petitioner’s members
own establishments engaged in the tourism trade. As noted earlier, petitioner contends that the de-
clared objective of the reclamation project is to exploit Boracay’s tourism trade because the project
is intended to enhance support services thereto; however, this objective would not be achieved since
the white-sand beaches for which Boracay is famous might be negatively affected by the project.
Petitioner’s conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-
EMB RVI, ignored the spirit and letter of our environmental laws, and should thus be compelled to
perform their duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for peti-
tioner under the writ of continuing mandamus, which is a special civil action that may be availed of
"to compel the performance of an act specifically enjoined by law"140 and which provides for the is-
suance of a TEPO "as an auxiliary remedy prior to the issuance of the writ itself."141 The Rationale of
the said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress
to the implementation of regulatory programs by the appropriate government agencies.
Thus, a government agency’s inaction, if any, has serious implications on the future of environmental
law enforcement. Private individuals, to the extent that they seek to change the scope of the regula-
tory process, will have to rely on such agencies to take the initial incentives, which may require a
judicial component. Accordingly, questions regarding the propriety of an agency’s action or inaction
will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for
the enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the court’s decision" and, in
order to do this, "the court may compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance with its decision."143
According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent Province to comply with certain environmental laws,
rules, and procedures that it claims were either circumvented or ignored. Hence, we find that the
petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which
reads:
SECTION 1. Petition for continuing mandamus.—When any agency or instrumentality of the govern-
ment or officer thereof unlawfully neglects the performance of an act which the law specifically en-
joins as a duty resulting from an office, trust or station in connection with the enforcement or viola-
tion of an environmental law rule or regulation or a right therein, or unlawfully excludes another from
the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment be rendered command-
ing the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay
damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of
non-forum shopping.
SECTION 2. Where to file the petition.—The petition shall be filed with the Regional Trial Court exer-
cising jurisdiction over the territory where the actionable neglect or omission occurred or with the
Court of Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Ap-
peals, or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine
the questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required
by laws and regulations, and whether respondent Province complied with all the requirements under
the pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon its claim that the reclamation project is misclassified
as a single project when in fact it is co-located. Petitioner also questions the classification made by
respondent Province that the reclamation project is merely an expansion of the existing jetty port,
when the project descriptions embodied in the different documents filed by respondent Province de-
scribe commercial establishments to be built, among others, to raise revenues for the LGU; thus, it
should have been classified as a new project. Petitioner likewise cries foul to the manner by which
respondent Province allegedly circumvented the documentary requirements of the DENR-EMB RVI by
the act of connecting the reclamation project with its previous project in 1999 and claiming that the
new project is a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC
issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with respondent PRA was conditioned on its submission of
specific documents within 120 days. Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the reclamation project and that
the subject matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part,
declared through its General Manager that the "Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64 hectares,
more or less."144
The Court notes such manifestation of respondent Province. Assuming, however, that the area in-
volved in the subject reclamation project has been limited to 2.64 hectares, this case has not be-
come moot and academic, as alleged by respondents, because the Court still has to check whether
respondents had complied with all applicable environmental laws, rules, and regulations pertaining to
the actual reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny ECCs to project proponents.145 It is the
DENR that has the duty to implement the EIS system. It appears, however, that respondent DENR-
EMB RVI’s evaluation of this reclamation project was problematic, based on the valid questions raised
by petitioner.
110
Being the administrator of the EIS System, respondent DENR-EMB RVI’s submissions bear great weight
in this case. However, the following are the issues that put in question the wisdom of respondent
DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s classification of the project as a mere expansion of the exist-
ing jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the environ-
ment.
The above issues as raised put in question the sufficiency of the evaluation of the project by respon-
dent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise
and authority to state whether this is a new project, subject to the more rigorous environmental
impact study requested by petitioner, or it is a mere expansion of the existing jetty port facility.
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual, the
"Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified un-
der Group II" (Table I-2) lists "buildings, storage facilities and other structures" as a separate item
from "transport terminal facilities." This creates the question of whether this project should be con-
sidered as consisting of more than one type of activity, and should more properly be classified as
"co-located," under the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single
projects, under one or more proponents/locators, which are located in a contiguous area and man-
aged by one administrator, who is also the ECC applicant. The co-located project may be an econom-
ic zone or industrial park, or a mix of projects within a catchment, watershed or river basin, or any
other geographical, political or economic unit of area. Since the location or threshold of specific
projects within the contiguous area will yet be derived from the EIA process based on the carrying
capacity of the project environment, the nature of the project is called "programmatic." (Emphasis
added.)
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to ad-
dress the question of whether this could be deemed as a group of single projects (transport terminal
facility, building, etc.) in a contiguous area managed by respondent Province, or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1
and 3 above because the type of EIA study required under the Revised Procedural Manual depends on
such classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as
project proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as
follows:
An [EIA] is a ‘process that involves predicting and evaluating the likely impacts of a project (includ-
ing cumulative impacts) on the environment during construction, commissioning, operation and aban-
donment. It also includes designing appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the community’s welfare.146 (Em-
phases supplied.)
Thus, the EIA process must have been able to predict the likely impact of the reclamation project to
the environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior to construction merely contained a jetty port,
whereas the proposed expansion, as described in the EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal
that will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the
project construction costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
xxxx
The succeeding phases of the project will consist of [further] reclamation, completion of the com-
mercial center building, bay walk commercial strip, staff building, ferry terminal, a cable car system
and wharf marina. This will entail an additional estimated cost of ₱785 million bringing the total in-
vestment requirement to about ₱1.0 billion.147 (Emphases added.)
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province
above, a significant portion of the reclaimed area would be devoted to the construction of a com-
mercial building, and the area to be utilized for the expansion of the jetty port consists of a mere
3,000 square meters (sq. m). To be true to its definition, the EIA report submitted by respondent
Province should at the very least predict the impact that the construction of the new buildings on
the reclaimed land would have on the surrounding environment. These new constructions and their
environmental effects were not covered by the old studies that respondent Province previously sub-
mitted for the construction of the original jetty port in 1999, and which it re-submitted in its appli-
cation for ECC in this alleged expansion, instead of conducting updated and more comprehensive
studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only
by a narrow strait. This becomes more imperative because of the significant contributions of Bora-
cay’s white-sand beach to the country’s tourism trade, which requires respondent Province to pro-
ceed with utmost caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the envi-
ronment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of Davao,148
wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local
government unit as a body politic and corporate endowed with powers to be exercised by it in con-
formity with law. As such, it performs dual functions, governmental and proprietary. Governmental
111
functions are those that concern the health, safety and the advancement of the public good or wel-
fare as affecting the public generally. Proprietary functions are those that seek to obtain special cor-
porate benefits or earn pecuniary profit and intended for private advantage and benefit. When exer-
cising governmental powers and performing governmental duties, an LGU is an agency of the national
government. When engaged in corporate activities, it acts as an agent of the community in the ad-
ministration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the people’s
right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption
from the coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has
the duty to ensure the quality of the environment, which is the very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an Environ-
mental Compliance Certificate issued by the President or his duly authorized representative." The Civil
Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the
local government units are juridical persons. Undoubtedly therefore, local government units are not
excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state
to achieve a balance between socio-economic development and environmental protection, which are
the twin goals of sustainable development. The above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a comprehensive and integrated environmental
protection program where all the sectors of the community are involved, i.e., the government and the
private sectors. The local government units, as part of the machinery of the government, cannot
therefore be deemed as outside the scope of the EIS system.149 (Emphases supplied.)
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper
study, and if it should find necessary, to require respondent Province to address these environmental
issues raised by petitioner and submit the correct EIA report as required by the project’s specifica-
tions. The Court requires respondent DENR-EMB RVI to complete its study and submit a report within
a non-extendible period of three months. Respondent DENR-EMB RVI should establish to the Court in
said report why the ECC it issued for the subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the mainte-
nance of ecological balance, and requires them to secure prior public consultation and approval of
local government units for the projects described therein.
In the case before us, the national agency involved is respondent PRA. Even if the project proponent
is the local government of Aklan, it is respondent PRA which authorized the reclamation, being the
exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary for
respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRA’s
authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office
of the DENR, is also a national government institution which is tasked with the issuance of the ECC
that is a prerequisite to projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological bal-
ance of local communities, and is covered by the requirements found in the Local Government Code
provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall
be the duty of every national agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover,
and extinction of animal or plant species, to consult with the local government units, nongovernmen-
tal organizations, and other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of environmental or ecological bal-
ance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by govern-
ment authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied
with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless appropriate relocation sites
have been provided, in accordance with the provisions of the Constitution.
In Lina, Jr. v. Paño,150 we held that Section 27 of the Local Government Code applies only to "na-
tional programs and/or projects which are to be implemented in a particular local community"151 and
that it should be read in conjunction with Section 26. We held further in this manner:
Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1)
may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renew-
able resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate
certain animal or plant species from the face of the planet; and (6) other projects or programs that
may call for the eviction of a particular group of people residing in the locality where these will be
implemented. Obviously, none of these effects will be produced by the introduction of lotto in the
province of Laguna.152 (Emphasis added.)
During the oral arguments held on September 13, 2011, it was established that this project as de-
scribed above falls under Section 26 because the commercial establishments to be built on phase 1,
as described in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage,
and possible toxic fuel discharge.153
Our ruling in Province of Rizal v. Executive Secretary154 is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held
that there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
the sangguniang bayan the power to, among other things, "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section
16 of th(e) Code." These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose appropriate
penalties for acts which endanger the environment, such as dynamite fishing and other forms of de-
structive fishing, illegal logging and smuggling of logs, smuggling of natural resources products and of
endangered species of flora and fauna, slash and burn farming, and such other activities which result
in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance; [Section
447 (1)(vi)]
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(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating
the construction, repair or modification of buildings within said fire limits or zones in accordance with
the provisions of this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and facil-
ities, …providing for the establishment, maintenance, protection, and conservation of communal
forests and watersheds, tree parks, greenbelts, mangroves, and other similar forest development
projects …and, subject to existing laws, establishing and providing for the maintenance, repair and
operation of an efficient waterworks system to supply water for the inhabitants and purifying the
source of the water supply; regulating the construction, maintenance, repair and use of hydrants,
pumps, cisterns and reservoirs; protecting the purity and quantity of the water supply of the munici-
pality and, for this purpose, extending the coverage of appropriate ordinances over all territory within
the drainage area of said water supply and within one hundred (100) meters of the reservoir, con-
duit, canal, aqueduct, pumping station, or watershed used in connection with the water service; and
regulating the consumption, use or wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two requisites must be met before a national project
that affects the environmental and ecological balance of local communities can be implemented: prior
consultation with the affected local communities, and prior approval of the project by the appropriate
sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal.155
(Emphasis added.)
Based on the above, therefore, prior consultations and prior approval are required by law to have
been conducted and secured by the respondent Province. Accordingly, the information dissemination
conducted months after the ECC had already been issued was insufficient to comply with this re-
quirement under the Local Government Code. Had they been conducted properly, the prior public
consultation should have considered the ecological or environmental concerns of the stakeholders and
studied measures alternative to the project, to avoid or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to obtain the favorable endorsement of the Sanggu-
niang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is mandato-
ry unless otherwise determined by EMB. For all other undertakings, a public hearing is not mandatory
unless specifically required by EMB.
Proponents should initiate public consultations early in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration in the EIA study and the formulation of the
management plan. All public consultations and public hearings conducted during the EIA process are
to be documented. The public hearing/consultation Process report shall be validated by the EMB/EMB
RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same should
be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study.
In this case, respondent Province had already filed its ECC application before it met with the local
government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National Govern-
ment Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No.
2007-08. However, we still find that the LGC requirements of consultation and approval apply in this
case. This is because a Memorandum Circular cannot prevail over the Local Government Code, which
is a statute and which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the
Liga ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province com-
menced the implementation project, it violated Section 27 of the LGC, which clearly enunciates that
"[no] project or program shall be implemented by government authorities unless the consultations
mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained."
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of
the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the
Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly
achieved at the urging and insistence of respondent Province. As we have established above, the
respective resolutions issued by the LGUs concerned did not render this petition moot and academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in
Boracay and the protection of the environment, lest they kill the proverbial hen that lays the golden
egg. At the beginning of this decision, we mentioned that there are common goals of national signifi-
cance that are very apparent from both the petitioner’s and the respondents’ respective pleadings
and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
xxxx
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, "Establishing an Environmental Impact Statement
System, Including Other Environmental Management Related Measures and For Other Purposes," which
declared in its first Section that it is "the policy of the State to attain and maintain a rational and
orderly balance between socio-economic growth and environmental protection."
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2
of Republic Act No. 9593, or "The Tourism Act of 2009," which reads:
SECTION 2. Declaration of Policy. – The State declares tourism as an indispensable element of the
national economy and an industry of national interest and importance, which must be harnessed as an
engine of socioeconomic growth and cultural affirmation to generate investment, foreign exchange
and employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Em-
phasis ours.)
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The primordial role of local government units under the Constitution and the Local Government Code
of 1991 in the subject matter of this case is also unquestionable. The Local Government Code of
1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable
them to attain their fullest development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall provide for a more
responsive and accountable local government structure instituted through a system of decentraliza-
tion whereby local government units shall be given more powers, authority, responsibilities, and re-
sources. The process of decentralization shall proceed from the national government to the local
government units.156 (Emphases ours.)
As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent Province’s cooperation with respondent DENR-
EMB RVI in the Court-mandated review of the proper classification and environmental impact of the
reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by
1âwphi1
this Court is hereby converted into a writ of continuing mandamus specifically as follows:
1. Respondent Department of Environment and Natural Resources-Environmental Management Bureau
Regional Office VI shall revisit and review the following matters:
a. its classification of the reclamation project as a single instead of a co-located project;
b. its approval of respondent Province’s classification of the project as a mere expansion of the exist-
ing jetty port in Caticlan, instead of classifying it as a new project; and
c. the impact of the reclamation project to the environment based on new, updated, and comprehen-
sive studies, which should forthwith be ordered by respondent DENR-EMB RVI.
2. Respondent Province of Aklan shall perform the following:
a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal and
submit to the latter the appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with non-governmental
organizations and other stakeholders and sectors concerned as required by Section 27 in relation to
Section 26 of the Local Government Code.
3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the envi-
ronmental concerns raised by petitioner, and shall coordinate with respondent Province in modifying
the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.
4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented by
Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI) are
mandated to submit their respective reports to this Court regarding their compliance with the re-
quirements set forth in this Decision no later than three (3) months from the date of promulgation
of this Decision.
5. In the meantime, the respondents, their concerned contractor/s, and/or their agents, representa-
tives or persons acting in their place or stead, shall immediately cease and desist from continuing the
implementation of the project covered by ECC-R6-1003-096-7100 until further orders from this
Court. For this purpose, the respondents shall report within five (5) days to this Court the status of
the project as of their receipt of this Decision, copy furnished the petitioner.
This Decision is immediately executory.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
G.R. No. 161872             April 13, 2004
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17,
2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioner’s
Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however,
was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to in-
clude petitioner as they believed he had parties or movements to back up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Mo-
tion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s
Motion for Reconsideration and on similar motions filed by other aspirants for national elective posi-
tions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004.
The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage
a nationwide campaign and/or are not nominated by a political party or are not supported by a regis-
tered political party with a national constituency. Commissioner Sadain maintained his vote for peti-
tioner. By then, Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to opportunities for public service" under Section
26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying
him since he is the most qualified among all the presidential candidates, i.e., he possesses all the
constitutional and legal qualifications for the office of the president, he is capable of waging a na-
tional campaign since he has numerous national organizations under his leadership, he also has the
capacity to wage an international campaign since he has practiced law in other countries, and he has
a platform of government. Petitioner likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and rea-
sonable guidelines for determining the qualifications of candidates since it does not ask for the candi-
date’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to oppor-
tunities for public office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to seek the presidency. There is none. What is recognized is mere-
ly a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither
114
bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing
in the plain language of the provision which suggests such a thrust or justifies an interpretation of
the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration
of Principles and State Policies." The provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the provision does not contain any
judicially enforceable constitutional right but merely specifies a guideline for legislative or executive
action.3 The disregard of the provision does not give rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that the provision is not
self-executory. The original wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Jus-
tice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to
the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained
his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be
equal access to the opportunity. If you broaden, it would necessarily mean that the government
would be mandated to create as many offices as are possible to accommodate as many people as
are also possible. That is the meaning of broadening opportunities to public service. So, in order that
we should not mandate the State to make the government the number one employer and to limit
offices only to what may be necessary and expedient yet offering equal opportunities to access to it,
I change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive measures that would
accommodate as many people as possible into public office. The approval of the "Davide amendment"
indicates the design of the framers to cast the provision as simply enunciatory of a desired policy
objective and not reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of
positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its
effective means and reach are not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal
access," "opportunities," and "public service" are susceptible to countless interpretations owing to
their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people
an operative but amorphous foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio
refuse to give due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without discrimination, however, the equal ac-
cess clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limita-
tions are meant to be borne by any one who is minded to file a certificate of candidacy. In the case
at bar, there is no showing that any person is exempt from the limitations or the burdens which they
create.
Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Om-
nibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their pre-
sumed validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Con-
stitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the disqualification of candidates
who have not evinced a bona fide intention to run for office is easy to divine. The State has a com-
pelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this
end, the State takes into account the practical considerations in conducting elections. Inevitably, the
greater the number of candidates, the greater the opportunities for logistical confusion, not to men-
tion the increased allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a mandated electoral exer-
cise. At the same time, remedial actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme
Court held:
[T]here is surely an important state interest in requiring some preliminary showing of a significant
modicum of support before printing the name of a political organization and its candidates on the
ballot – the interest, if no other, in avoiding confusion, deception and even frustration of the democ-
ratic [process].11
The COMELEC itself recognized these practical considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 Jan-
uary 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of candidates for national
positions because the election process becomes a mockery even if those who cannot clearly wage a
national campaign are allowed to run. Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to
the government. For the official ballots in automated counting and canvassing of votes, an additional
page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a de-
cent campaign enough to project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candi-
dates" to run in the elections. Our election laws provide various entitlements for candidates for public
office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even the
receipt of electoral contributions.15 Moreover, there are election rules and regulations the formula-
tions of which are dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance candidacy becomes even more
galling. The organization of an election with bona fide candidates standing is onerous enough. To add
into the mix candidates with no serious intentions or capabilities to run a viable campaign would ac-
tually impair the electoral process. This is not to mention the candidacies which are palpably ridicu-
lous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae cov-
ering every step of the electoral process, most probably posed at the instance of these nuisance
candidates. It would be a senseless sacrifice on the part of the State.
115
Owing to the superior interest in ensuring a credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State
interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover,
the Constitution guarantees that only bona fide candidates for public office shall be free from any
form of harassment and discrimination.18 The determination of bona fide candidates is governed by
the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it.
The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered
in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at
this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner,
since such a review would necessarily take into account the matters which the COMELEC considered
in arriving at its decisions.
Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing
his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts,
can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the
Solicitor General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal and factual. The
basis of the factual determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the
government. It deserves not a cursory treatment but a hearing which conforms to the requirements
of due process.
As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to
say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a certificate of candidacy should contain, with the required information
tending to show that the candidate possesses the minimum qualifications for the position aspired for
as established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the
COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly
Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election
Code.
The COMELEC is directed to hold and complete the reception of evidence and report its findings to
this Court with deliberate dispatch.
SO ORDERED.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
a
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