and, as the same questions concerned them all, the application will be considered as including them.
The
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
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 application for
habeas corpus submits for decision. While hardly to be expected to be met with in this modern 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 expression 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 profitable
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 indirectly 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 presented an
application for habeas corpus to a member of the Supreme Court. Subsequently, the application, through
stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao
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 Manila, Anton Hohmann, chief of
police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full
court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should not be granted because the 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 attached 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
province 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 notified 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 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 attorney for that Bureau then in Davao, and offered certain
affidavits showing that the women were contained 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 isolated 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 constabulary 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 admitted 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 Manila provide for
the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899
authorizes the return of any citizen of the 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
imprisoned, 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 individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the
United States, "is the only supreme power in our system of government, and every man who by accepting
office participates in its functions is only the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise 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 criminal
prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the
act may be a crime and that the persons guilty thereof can be proceeded 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 freedom. 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 impossible 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 person 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 presented 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 anywhere 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 attorney, 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
decided 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 began 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 beyond 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.
Nevertheless, 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 jurisdiction 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 Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred 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 English 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 evasion 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 subject 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 jurisdiction. 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 constraint. 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 ordinary 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 Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. 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 absence 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 argument 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 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 respondents
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 Feliciano
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 waited until the 21st of
November before sending a telegram to the provincial governor of Davao. According 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 parties 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 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 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, authorities 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 investigation. If any particular individual is
still restrained of her liberty, it can be made the object of separate 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 Bureau of Labor,
Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of
habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte
Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot
say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have
been drawn into the case through a misconstruction by counsel of telegraphic communications. The city
fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of
the city government. Finding him innocent of any disrespect 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 deportation, who ordered the police to accomplish the same, who
made arrangements for the steamers 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 substantially 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 without 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.
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY
and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General
of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now
charged before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines
with having unlawfully disregarded and failed "to discharge his duties as such command, permitting them
to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the
Imperial Japanese Forces in violation of the laws and customs of war" — comes before this Court seeking to
establish the illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner's case
before the Military Commission and to permanently prohibit respondents from proceeding with the case of
petitioners.
In support of his case petitioner tenders the following principal arguments.
First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues —
"That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an
illegal order this commission is without jurisdiction to try herein petitioner."
Second. — That the participation in the prosecution of the case against petitioner before the Commission
in behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not
attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of our
personality as an independent state and their appointment as prosecutor are a violation of our Constitution
for the reason that they are not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a
party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing
the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July,
1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its
section 3, that —
The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the
Hague Convention the Geneva Convention and significant precedents of international jurisprudence
established by the United Nation all those person military or civilian who have been guilty of planning
preparing or waging a war of aggression and of the commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of humanity and civilization are held
accountable therefor. Consequently in the promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally accepted and policies of
international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz.,
664) 1 when we said —
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of
war is the adoption of measure by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in their attempt to thwart or impede our
military effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power
to create a military commission for the trial and punishment of war criminals is an aspect of waging war.
And in the language of a writer a military commission has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice or military occupation up to the effective of a treaty of
peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement of
Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines is not
a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a signatory to the
conventions embodying them for our Constitution has been deliberately general and extensive in its scope
and is not confined to the recognition of rule and principle of international law as continued inn treaties to
which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency
as a free state entitles us to enforce the right on our own of trying and punishing those who committed
crimes against crimes against our people. In this connection it is well to remember what we have said in the
case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution
of those charged with the crime of treason committed during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors is
violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a special law and
not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order
No. 68 which provides for the organization of such military commission is a valid and constitutional law.
There is nothing in said executive order which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts
it is common in military tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty it has not been by our government
but by the United State Government which has yielded to us the trial and punishment of her enemies. The
least that we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people
have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a leader nation should
submit the vindication of the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
this Court will not interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation
of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice
law were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of the
Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It
appearing that they are aliens and have not been authorized by the Supreme Court to practice law there
could not be any question that said person cannot appear as prosecutors in petitioner case as with such
appearance they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved in the
challenge against the validity of Executive Order No. 68. Said order is challenged on several constitutional
ground. To get a clear idea of the question raised it is necessary to read the whole context of said order
which is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATION GOVERNING
THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and
laws of the Philippines do hereby establish a National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and
prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General of the Army
of the Philippines and shall function under the direction supervision and control of the Judge Advocate
General. It shall proceed to collect from all available sources evidence of war crimes committed in the
Philippines from the commencement of hostilities by Japan in December 1941, maintain a record thereof
and bring about the prompt trial maintain a record thereof and bring about the prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters,
Supreme Commander for the Allied power and shall exchange with the said Office information and
evidence of war crimes.
The following rules and regulation shall govern the trial off person accused as war criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. — person accused as war criminal shall be tried by military commission to be convened by or
under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over all persons
charged with war crimes who are in the custody of the convening authority at the time of the trial.
(b) Over Offenses. — The military commission established hereunder shall have jurisdiction over all
offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in violation of international
treaties agreement or assurance or participation in a common plan or conspiracy for the accomplishment
of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to murder ill-
treatment or deportation to slave labor or for other purpose of civilian population of or in occupied
territory; murder or ill-treatment of prisoners of war or internees or person on the seas or elsewhere;
improper treatment of hostage; plunder of public or private property wanton destruction of cities towns or
village; or devastation not justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts committed against civilian
population before or during the war or persecution on political racial or religion ground in executive of or in
connection with any crime defined herein whether or not in violation of the local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. — The members of each military commission shall be appointed by the President of the
Philippines or under authority delegated by him. Alternates may be appointed by the convening authority.
Such shall attend all session of the commission, and in case of illness or other incapacity of any principal
member, an alternate shall take the place of that member. Any vacancy among the members or alternates,
occurring after a trial has begun, may be filled by the convening authority but the substance of all
proceeding had evidence taken in that case shall be made known to the said new member or alternate.
This facts shall be announced by the president of the commission in open court.
(b) Number of Members. — Each commission shall consist of not less than three (3) members.
(c) Qualifications. — The convening authority shall appoint to the commission persons whom he
determines to be competent to perform the duties involved and not disqualified by personal interest or
prejudice, provided that no person shall be appointed to hear a case in which he personally investigated or
wherein his presence as a witness is required. One specially qualified member whose ruling is final in so far
as concerns the commission on an objection to the admissibility of evidence offered during the trial.
(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the Commission shall be by
majority vote except that conviction and sentence shall be by the affirmative vote of not less than
conviction and sentence shall be by the affirmative vote of not less than two-thirds (2\3) of the member
present.

(e) Presiding Member. — In the event that the convening authority does not name one of the member as
the presiding member, the senior officer among the member of the Commission present shall preside.
IV. PROSECUTORS
(a) Appointment. — The convening authority shall designate one or more person to conduct the
prosecution before each commission.
(b) Duties. — The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred
for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. — A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any unnecessary delay or interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
authority.
(b) Rights of the Accused. — The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise
the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel
of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his
defense, and cross-examine each adverse witness who personally appears before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any documentary
evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. — The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations
to witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and duties set forth in (1)
and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving
the charge, or such as in the commission's opinion would have probative value in the mind of a reasonable
man. The commission shall apply the rules of evidence and pleading set forth herein with the greatest
liberality to achieve expeditious procedure. In particular, and without limiting in any way the scope of the
foregoing general rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the commission to have been signed
or issued by any officer, department, agency or member of the armed forces of any Government without
proof of the signature or of the issuance of the document.
(b) Any report which appears to the commission to have been signed or issued by the International Red
Cross or a member of any medical service personnel, or by any investigator or intelligence officer, or by any
other person whom commission considers as possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the commission to
contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately
available.
(2) The commission shall take judicial notice of facts of common knowledge, official government
documents of any nation, and the proceedings, records and findings of military or other agencies of any of
the United Nation.
(3) A commission may require the prosecution and the defense to make a preliminary offer of proof
whereupon the commission may rule in advance on the admissibility of such evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be considered in
mitigation of punishment. Further action pursuant to an order of the accused's superior, or of his
Government, shall not constitute a defense, but may be considered in mitigation of punishment if the
commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence without any
showing that they were voluntarily made. If it is shown that such confession or statement was procured by
mean which the commission believe to have been of such a character that may have caused the accused to
make a false statement the commission may strike out or disregard any such portion thereof as was so
procured.
(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows unless
modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at this or any other
time require the prosecutor to state what evidence he proposes to submit to the commission and the
commission thereupon may rule upon the admissibility of such evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the
case for the prosecution, the commission may, on motion of the defense for a finding of not guilty,
consider and rule whether he evidence before the commission may defer action on any such motion and
permit or require the prosecution to reopen its case and produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The presiding member may,
at this any other time require the defense to state what evidence it proposes to submit to the commission
where upon the commission may rule upon the admissibility of such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the
prosecution and defense may introduce such evidence in rebuttal as the commission may rule as being
admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless otherwise directed by
the convening authority, announce in open court its judgment and sentence if any. The commission may
state the reason on which judgment is based.
( f ) Record of Proceedings. — Each commission shall make a separate record of its proceeding in the trial
of each case brought before it. The record shall be prepared by the prosecutor under the direction of the
commission and submitted to the defense counsel. The commission shall be responsible for its accuracy.
Such record, certified by the presiding member of the commission or his successor, shall be delivered to
the convening authority as soon as possible after the trial.
(g) Sentence. — The commission may sentence an accused, upon conviction to death by hanging or
shooting, imprisonment for life or for any less term, fine or such other punishment as the commission shall
determine to be proper.
(h) Approval of Sentence. — No. sentence of a military commission shall be carried into effect until
approved by the chief off Staff: Provided, That no sentence of death or life imprisonment shall be carried
into execution until confirmed by the President of the Philippines. For the purpose of his review the Chief
of Staff shall create a Board of Review to be composed of not more than three officers none of whom shall
be on duty with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority
to approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter the sentence
imposed, or (without prejudice to the accused) remand the case for rehearing before a new military
commission; but he shall not have authority to increase the severity of the sentence. Except as herein
otherwise provided the judgment and sentence of a commission shall final and not subject to review by any
other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern its procedure,
not inconsistent with the provision of this Order, or such rules and forms as may be prescribed by the
convening authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the appropriations
for the Army of the Philippines for use by the National War Crimes Office in the accomplishment of its
mission as hereinabove set forth, and shall be expended in accordance with the recommendation of the
Judge Advocate General as approved by the President. The buildings, fixtures, installations, messing, and
billeting equipment and other property herefore used by then Legal Section, Manila Branch, of the General
Headquarters, Supreme Commander for the Allied Power, which will be turned over by the United States
Army to the Philippines Government through the Foreign Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for use off the National War Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and forty-seven,
and of the Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional
enactment.
The first question that is trust at our face spearheading a group of other no less important question, is
whether or not the President of the Philippines may exercise the legislative power expressly vested in
Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a Senate and
House of Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative power by
agencies other than Congress, a reading of the whole context of the Constitution would dispel any doubt as
to the constitutional intent that the legislative power is to be exercised exclusively by Congress, subject
only to the veto power of the President of the President of the Philippines, to the specific provision which
allow the president of the Philippines to suspend the privileges of the writ of habeas corpus and to place
any part of the Philippines under martial law, and to the rule-making power expressly vested by the
Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in the
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated the three power of government —
legislative, executive, judicial — to distinct and separate department of government.
Because the power vested by our Constitution to the several department of the government are in the
nature of grants, not recognition of pre-existing power, no department of government may exercise any
power or authority not expressly granted by the Constitution or by law by virtue express authority of the
Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish government
office is essentially legislative.
The order provides that person accused as war criminals shall be tried by military commissions. Whether
such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate
jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution in
Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the President of the Philippines
cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he cannot, with
more reason, delegate that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by the
said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote
appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines
usurped power expressly vested by the Constitution in Congress and in the Supreme Court.
Challenged to show the constitutional or legal authority under which the President issued Executive Order
No. 68, respondent could not give any definite answer. They attempted, however, to suggest that the
President of the Philippines issued Executive Order No. 68 under the emergency power granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No.
671, both of which are transcribed below:
COMMONWEALTH ACT NO. 600.
AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES
AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY
OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national emergency which makes
it necessary to invest the President of the Philippines with extraordinary power in order to safeguard the
integrity of the Philippines and to insure the tranquility of its inhabitants, by suppressing espionage,
lawlessness, and all subversive to the people adequate shelter and clothing and sufficient food supply, and
by providing means for the speedy evacuation of the civilian population the establishment of an air
protective service and the organization of volunteer guard units, and to adopt such other measures as he
may deem necessary for the interest of the public. To carry out this policy the President is authorized to
promulgate rules and regulations which shall have the force and effect off law until the date of
adjournment of the next regulation which shall have the force and effect of law until the date of
adjournment of the next regular session of the First Congress of the Philippines, unless sooner amended or
repealed by the Congress of Philippines. Such rules and regulation may embrace the following objects: (1)
to suppress espionage and other subversive activities; (2) to require all able-bodied citizens (a) when not
engaged in any lawful occupation, to engage in farming or other productive activities or (b) to perform such
services as may bee necessary in the public interest; (3) to take over farm lands in order to prevent or
shortage of crops and hunger and destitution; (4) to take over industrial establishment in order to insure
adequate production, controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever
necessary to prevent the unwarranted suspension of work in productive enterprises or in the interest of
national security; (6) to regulate the normal hours of work for wage-earning and salaried employees in
industrial or business undertakings of all kinds; (7) to insure an even distribution of labor among the
productive enterprises; (8) to commandership and other means of transportation in order to maintain, as
much as possible, adequate and continued transportation facilities; (9) to requisition and take over any
public service or enterprise for use or operation by the Government;(10) to regulate rents and the prices of
articles or commodities of prime necessity, both imported and locally produced or manufactured; and (11)
to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations, and private
control affecting the supply, distribution and movement of foods, clothing, fuel, fertilizer, chemical,
building, material, implements, machinery, and equipment required in agriculture and industry, with power
to requisition these commodities subject to the payment of just compensation. (As amended by Com. Act
No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the President may designate
any officer, without additional compensation, or any department, bureau, office, or instrumentality of the
National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of this
Act or any of the rules or regulations promulgated by the President under the authority of section one of
this Act shall be punished by imprisonment of not more than ten years or by a fine of not more than ten
thousand pesos, or by both. If such violation is committed by a firm or corporation, the manager, managing
director, or person charge with the management of the business of such firm, or corporation shall be
criminally responsible therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from the date of the
opening of its next regular session whatever action has been taken by him under the authority herein
granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts as may be
necessary from the sum appropriated under section five Commonwealth Act Numbered four hundred and
ninety-eight.
SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to be
unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.
COMMONWEALTH ACT NO. 671
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES
AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH
EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe and Asia, which
involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to
meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is hereby
authorized, during the existence of the emergency, to promulgate such rules and regulation as he may
deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among
other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches,
department, offices, agencies or instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of precedence of the heads of the Executive
Department; (c) to create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and appropriation
which would lapse or otherwise became inoperative, and to modify or suspend the operation or application
of those of an administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize
the expensive of the proceeds thereof; (g) to authorize the National, provincial, city or municipal
governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the
collection of credits or the payment of debts; and (i) to exercise such other power as he may deem
necessary to enable the Government to fulfill its responsibilities and to maintain and enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated by him
under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated hereunder
shall be in force and effect until the Congress of the Philippines shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said Acts
had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when the
surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in
their consideration and passage, not only as one of the members of said legislative body as chairman of the
Committee on Third Reading population Known as the "Little Senate." We are, therefore in a position to
state that said measures were enacted by the second national Assembly for the purpose of facing the
emergency of impending war and of the Pacific War that finally broke out with the attack of Pearl Harbor
on December 7, 1941. We approved said extraordinary measures, by which under the exceptional
circumstances then prevailing legislative power were delegated to the President of the Philippines, by
virtue of the following provisions of the Constitution:
In time of war or other national emergency, the Congress may by law authorize the President, for a limited
period and subject to such restrictions as it may prescribe to promulgate rules and regulations to carry out
declared national policy. (Article VI, section 26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the emergency
created by the war as to extend it farther would be violative of the express provision of the Constitution.
We are of the opinion that there is no doubt on this question.; but if there could still be any the same
should be resolved in favor of the presumption that the National Assembly did not intend to violate the
fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the surrender of
Japan can not be gainsaid. Only a few months after liberation and even before the surrender of Japan, or
since the middle of 1945, the Congress started to function normally. In the hypothesis that the contention
can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was already replaced
by the Republic of the Philippines with the proclamation of our Independence, two district, separate and
independence legislative organs, — Congress and the President of the Philippines — would have been and
would continue enacting laws, the former to enact laws of every nature including those of emergency
character, and the latter to enact laws, in the form of executive orders, under the so-called emergency
powers. The situation would be pregnant with dangers to peace and order to the rights and liberties of the
people and to Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a possibility that
no one can dispute the President of the Philippines may take advantage of he long recess of Congress (two-
thirds of every year ) to repeal and overrule legislative enactments of Congress, and may set up a veritable
system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. It is especially so, because it permit the
admission of many kinds evidence by which no innocent person can afford to get acquittal and by which it
is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation governing the
trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of the United State
Armed Forces in Western Pacific, for the purpose of trying among other, General Yamashita and Homma.
What we said in our concurring and dissenting opinion to the decision promulgated on December 19, 1945,
in the Yamashita case, L-129, and in our concurring and dissenting opinion to the resolution of January 23,
1946 in disposing the Homma case, L-244, are perfectly applicable to the offensive rules of evidence in
Executive Order No. 68. Said rules of evidence are repugnant to conscience as under them no justice can
expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare
Executive Order No. 68 null and void and to grant petition.
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships
adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila,
respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of
Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due process,
police power and equal protection of the laws. It also poses an important issue of fact, that is whether the
conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a
deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the
alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate
national aspirations for economic independence and national security, rooted in the drive and urge for
national survival and welfare, into a concrete and tangible measures designed to free the national retailer
from the competing dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail
trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the
Philippines, and against associations, partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception
from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are
allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons, and for ten years after the approval of the
Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of
citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in
the retail business) for violation of the laws on nationalization, control weights and measures and labor and
other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening
by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature of
the business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business
for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks
the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the
laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of
the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and
Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in
the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the
interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty
or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but
the value of the property is not impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due process
and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate
issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary,
considerations in the determination of the ever recurrent conflict between police power and the
guarantees of due process and equal protection of the laws. What is the scope of police power, and how
are the due process and equal protection clauses related to it? What is the province and power of the
legislature, and what is the function and duty of the courts? These consideration must be clearly and
correctly understood that their application to the facts of the case may be brought forth with clarity and
the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit
its sweep. As it derives its existence from the very existence of the State itself, it does not need to be
expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such
it is the most positive and active of all governmental processes, the most essential, insistent and illimitable.
Especially is it so under a modern democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and scope of police power has become
almost boundless, just as the fields of public interest and public welfare have become almost all-embracing
and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of
public interest and welfare in this constantly changing and progressive world, so we cannot delimit
beforehand the extent or scope of police power by which and through which the State seeks to attain or
achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power
of the State; what they do is to set forth the limitations thereof. The most important of these are the due
process clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any
person be denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is
limited either in the object to which it is directed or by territory within which is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable grounds exists for making a
distinction between those who fall within such class and those who do not. (2 Cooley, Constitutional
Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police
power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary
for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is
there sufficient foundation or reason in connection with the matter involved; or has there not been a
capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not
merely an unjustified interference with private interest? These are the questions that we ask when the due
process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to
coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for
that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy.
So the State can deprive persons of life, liberty and property, provided there is due process of law; and
persons may be classified into classes and groups, provided everyone is given the equal protection of the
law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist between purposes and means. And if
distinction and classification has been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the
police power, or of the measures adopted to implement the public policy or to achieve public interest. On
the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless
evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early
where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into
the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the
disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls
within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade
or occupation, as old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume and consume all that they produce,
the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce,
the dealer comes into existence. As villages develop into big communities and specialization in production
begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which
man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life
are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the
human body, thru which all the needed food and supplies are ministered to members of the communities
comprising the nation.
There cannot be any question about the importance of the retailer in the life of the community. He
ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and
things needed for home and daily life. He provides his customers around his store with the rice or corn, the
fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and
the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler,
the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a
part of day-to-day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded
towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in
far away nooks where the beginnings of community life appear, ministering to the daily needs of the
residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in
many communities the alien has replaced the native retailer. He has shown in this trade, industry without
limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of
population he has acquired not only predominance, but apparent control over distribution of almost all
kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other
goods and articles. And were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Acefa, his control over principal foods and products would easily become full and
complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said
that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the
result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control;
also so many unmanageable factors in the retail business make control virtually impossible. The first
argument which brings up an issue of fact merits serious consideration. The others are matters of opinion
within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment
of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-
increasing dominance and control by the alien of the retail trade, as witness the following tables:
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark:
1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp.
18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests and gross sales, alien participation has
steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here,
do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains
much more. The same official report, pointing out to the known predominance of foreign elements in the
retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As
observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention. —
It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the Convention
that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting. Dean Sinco of the University of the
Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of
our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic activities of the
country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic
provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life of the country is not
desirable and that if such a situation should remain, political independence alone is no guarantee to
national stability and strength. Filipino private capital is not big enough to wrest from alien hands the
control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced,
timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has
to step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the
nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . it (the
Constitution) envisages an organized movement for the protection of the nation not only against the
possibilities of armed invasion but also against its economic subjugation by alien interests in the economic
field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20,
1954, of the Second National Convention of Manufacturers and Producers. The man in the street also
believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out
not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact,
a reality proved by official statistics, and felt by all the sections and groups that compose the Filipino
community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance
alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With
ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act
in such complete unison and concert on such vital matters as the fixing of prices, the determination of the
amount of goods or articles to be made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of dislocation of the national economy
and of the complete subservience of national economy and of the consuming public are not entirely
unfounded. Nationals, producers and consumers alike can be placed completely at their mercy. This is
easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the
producer or importer does not offer them sufficient profits, or because a new competing article offers
bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of
the prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination.
Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice,
which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien participation in the retail trade has been
attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our
purposes; that at some time or other they have cornered the market of essential commodities, like corn
and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they
have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that
the Government has had to establish the National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price control laws, especially on
foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply and
demand; that they have connived to boycott honest merchants and traders who would not cater or yield to
their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of
graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been
made both by the Government and by their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The
present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a
potential source of danger on occasions of war or other calamity. We do not have here in this country
isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and
powerful groups that dominate the distribution of goods and commodities in the communities and big
centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them
in times of crisis or emergency. While the national holds his life, his person and his property subject to the
needs of his country, the alien may even become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not
the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope
of police power, thru which and by which the State insures its existence and security and the supreme
welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now poses solution is, Does the
law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and
cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance
to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted
by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but
he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays
and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as
would prevent him from taking advantage of their weakness and exploiting them. The faster he makes his
pile, the earlier can the alien go back to his beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such utter disregard for his customers and the
people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it
may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution
to national income and wealth. He undoubtedly contributes to general distribution, but the gains and
profits he makes are not invested in industries that would help the country's economy and increase
national wealth. The alien's interest in this country being merely transient and temporary, it would indeed
be ill-advised to continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret
manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers
and of the ultimate happiness of the people of the nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of
real and actual, positive and fundamental differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These differences are certainly a valid reason
for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact
and reality were we to hold that no reason or ground for a legitimate distinction can be found between one
and the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is
patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the act transcends the limit of equal protection
established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not
curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope
of discretion, and a law can be violative of the constitutional limitation only when the classification is
without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case
of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power
to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that
regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely
arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely
because it is not made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts reasonably can be conceived
that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of showing that it does not rest
upon any reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for classification has already been
affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of
Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature
was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to
corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to
aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the
Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the encouragement of
Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a
valid exercise of the police power, and all presumptions are in favor of its constitutionality. In substance,
we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the
Philippines does not violate the equal protection of the law and due process or law clauses of the Philippine
Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson
in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms
part of an extensive system, the object of which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every commercial nation reserves to its own
subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole
system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply
because the limitation of the class falls along the lines of nationality. That would be requiring a higher
degree of protection for aliens as a class than for similar classes than for similar classes of American
citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for
reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and
peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to
become a citizen of the United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for the welfare, good order and
happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield
vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from
engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a
deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently
acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular
business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the
city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance
may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis
of permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude
must be allowed for the legislative appraisement of local conditions and for the legislative choice of
methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a
parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of
pawn brooking was considered as having tendencies injuring public interest, and limiting it to citizens is
within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was
also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle,
297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests,
knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the
business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights.
In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the
licensing of aliens as barbers was held void, but the reason for the decision was the court's findings that the
exercise of the business by the aliens does not in any way affect the morals, the health, or even the
convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a
California statute banning the issuance of commercial fishing licenses to person ineligible to citizenship was
held void, because the law conflicts with Federal power over immigration, and because there is no public
interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate
justification for the discrimination. It further added that the law was the outgrowth of antagonism toward
the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have
been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257
(Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born unnaturalized
male persons over 21 years of age, was declared void because the court found that there was no reason for
the classification and the tax was an arbitrary deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the United States hold that the
distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws
declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or
product of racial antagonism and hostility, and there was no question of public interest involved or
pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared
invalid a Philippine law making unlawful the keeping of books of account in any language other than
English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese
were driven out of business there would be no other system of distribution, and (2) that the Chinese would
fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their business
and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public
benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of
something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an
ordinance conferring powers on officials to withhold consent in the operation of laundries both as to
persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there
was no reason for the discrimination which attended the administration and implementation of the law,
and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a
law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination
bore no reasonable and just relation to the act in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances
their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the
qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis
and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342,
to drive home the reality and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate
knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain
classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and
reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose
ideals of governmental environment and control have been engendered and formed under entirely
different regimes and political systems, have not the same inspiration for the public weal, nor are they as
well disposed toward the United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with
absolute confidence that the Legislature was without plausible reason for making the classification, and
therefore appropriate discriminations against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive. —
We now come to due process as a limitation on the exercise of the police power. It has been stated by the
highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be
unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation
to the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of other constitutional restriction
a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare,
and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to
declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to
have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to that effect renders a court functus
officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police
power in a constitutional sense, for the test used to determine the constitutionality of the means employed
by the legislature is to inquire whether the restriction it imposes on rights secured to individuals by the Bill
of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it
affects, must not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am.
Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the accomplishment of the purpose, and not
unduly oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to
regulate the operation of a business, is or is not constitutional, one of the first questions to be considered
by the court is whether the power as exercised has a sufficient foundation in reason in connection with the
matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial
relation to the health, safety, morals, comfort, and general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago
recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest
occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where
the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest
creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger
to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and
indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious
designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts
and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable.
Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the
aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is
deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy
from alien control and dominance. It is not necessarily unreasonable because it affects private rights and
privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or
adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by
this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered
not to have infringed the constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of
the Philippines from having a strangle hold upon our economic life. If the persons who control this vital
artery of our economic life are the ones who owe no allegiance to this Republic, who have no profound
devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not
really the masters of our destiny. All aspects of our life, even our national security, will be at the mercy of
other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens
of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons
who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national
life and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the
less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or country. The removal and
eradication of the shackles of foreign economic control and domination, is one of the noblest motives that
a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about
can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a
people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —
The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination, thru
the exercise of the police power. The fathers of the Constitution must have given to the legislature full
authority and power to enact legislation that would promote the supreme happiness of the people, their
freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they
adopted a resolution expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade;
but it abstain from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and
others on this matter because it is convinced that the National Assembly is authorized to promulgate a law
which limits to Filipino and American citizens the privilege to engage in the retail trade. (11 Aruego, The
Framing of the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as
corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization of
its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any
other form of authorization for the operation of the public utility shall be granted except to citizens of the
Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same
purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and
unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of
the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the
repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and
meet, through adequate measures, the danger and threat that alien domination of retail trade poses to
national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact
that the privilege should not have been denied to children and heirs of aliens now engaged in the retail
trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative
discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives
of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the
judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its
validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul
the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a
law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find
the provisions are not unreasonable. These principles also answer various other arguments raised against
the law, some of which are: that the law does not promote general welfare; that thousands of aliens would
be thrown out of employment; that prices will increase because of the elimination of competition; that
there is no need for the legislation; that adequate replacement is problematical; that there may be general
breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed
against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not
import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business
and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in
the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators
or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes
and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both
of these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale
of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be
stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject
of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated;
such matters being properly included within the subject of regulating the sale. (Williams vs. State, 48 Ind.
306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of
acts usually done in connection with the thing to be regulated. While word regulate does not ordinarily
convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need
not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.)
The above rule was followed the title of the Act in question adopted the more general term "regulate"
instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of
the retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling
within the scope of the title which would have made the Act invalid. The use of the term "regulate",
therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general
term should be adopted in the title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment
into law of matters which have received the notice, action and study of the legislators or of the public. In
the case at bar it cannot be claimed that the legislators have been appraised of the nature of the law,
especially the nationalization and the prohibition provisions. The legislators took active interest in the
discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law
invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding
the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32),
and the Declaration of Human Rights contains nothing more than a mere recommendation or a common
standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United
Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the
United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail
trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is
also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to
the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other countries, except those of the United
States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same
may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed.
539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien dominance and control of the retail business and
free citizens and country from dominance and control; that the enactment clearly falls within the scope of
the police power of the State, thru which and by which it protects its own personality and insures its
security and future; that the law does not violate the equal protection clause of the Constitution because
sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation
regulated, nor the due process of law clause, because the law is prospective in operation and recognizes
the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the
wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident — as a matter
of fact it seems not only appropriate but actually necessary — and that in any case such matter falls within
the prerogative of the Legislature, with whose power and discretion the Judicial department of the
Government may not interfere; that the provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the segment of the population affected; and
that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually
been entered into on the subject and the police power may not be curtailed or surrendered by any treaty
or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law
for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however,
is merely to determine if the law falls within the scope of legislative authority and does not transcend the
limitations of due process and equal protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ,
respondents.
RESOLUTION
PUNO, J.:
On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner to
furnish private respondent copies of the extradition request and its supporting papers and to grant him a
reasonable period within which to file his comment with supporting evidence.1
On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the
decision on the following grounds:
"The majority decision failed to appreciate the following facts and points of substance and of value which, if
considered, would alter the result of the case, thus:
I. There is a substantial difference between an evaluation process antecedent to the filing of an extradition
petition in court and a preliminary investigation.
II. Absence of notice and hearing during the evaluation process will not result in a denial of fundamental
fairness.
III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.
IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is
intended to prevent flight.
V. There is a need to balance the interest between the discretionary powers of government and the rights
of an individual.
VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing may be
dispensed with in this case results in a non sequitur conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice and
hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has encroached
upon the constitutional boundaries separating it from the other two co-equal branches of government.
IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings."2
On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing
petitioner’s Urgent Motion for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action and
Filing of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached Note 327/00
from the Embassy of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR Government
Secretariat. On August 15, 2000, private respondent filed a Manifestation and Motion for Leave to File
Rejoinder in the event that petitioner's April 5, 2000 Motion would be granted. Private respondent also
filed on August 18, 2000, a Motion to Expunge from the records petitioner's June 7, 2000 Manifestation
with its attached note verbales. Except for the Motion to Allow Continuation and Maintenance of Action,
the Court denies these pending motions and hereby resolves petitioner's Urgent Motion for
Reconsideration.
The jugular issue is whether or not the private respondent is entitled to the due process right to notice and
hearing during the evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to notice and hearing during the evaluation
stage of the extradition process.
First. P.D. No. 10693 which implements the RP-US Extradition Treaty provides the time when an extraditee
shall be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the filing
of the petition for extradition in the extradition court, viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused
to appear and to answer the petition on the day and hour fixed in the order . . . Upon receipt of the
answer, or should the accused after having received the summons fail to answer within the time fixed, the
presiding judge shall hear the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case."
It is of judicial notice that the summons includes the petition for extradition which will be answered by the
extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the
right to demand from the petitioner Secretary of Justice copies of the extradition request from the US
government and its supporting documents and to comment thereon while the request is still undergoing
evaluation. We cannot write a provision in the treaty giving private respondent that right where there is
none. It is well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any clause,
small or great, or dispense with any of its conditions and requirements or take away any qualification, or
integral part of any stipulation, upon any motion of equity, or general convenience, or substantial justice."4
Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory
provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object and purpose."5 (emphasis
supplied) The preambular paragraphs of P.D. No. 1069 define its intent, viz:
"WHEREAS, under the Constitution[,] the Philippines 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;
WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of
any other state to which the criminal may have escaped, because it saps the foundation of social life and is
an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not
go unpunished;
WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty with the
Republic of Indonesia, and intends to conclude similar treaties with other interested countries;
x x x." (emphasis supplied)
It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the
dramatic rise of international and transnational crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers
of territorial sovereignty. Implicit in the treaties should be the unbending commitment that the
perpetrators of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not
prevent the escape of extraditees from the long arm of the law and expedite their trial. The submission of
the private respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be
furnished a copy of the US government request for his extradition and its supporting documents even while
they are still under evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear
of the petitioner Secretary of Justice that the demanded notice is equivalent to a notice to flee must be
deeply rooted on the experience of the executive branch of our government. As it comes from the branch
of our government in charge of the faithful execution of our laws, it deserves the careful consideration of
this Court. In addition, it cannot be gainsaid that private respondent’s demand for advance notice can delay
the summary process of executive evaluation of the extradition request and its accompanying papers. The
foresight of Justice Oliver Wendell Holmes did not miss this danger. In 1911, he held:
"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at
common law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form
according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should
be tried, good faith to the demanding government requires his surrender."6 (emphasis supplied)
We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is
best served when done without delay.
Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the issue in question by other countries with
similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly charged with their
negotiation and enforcement is accorded great weight.7 The reason for the rule is laid down in Santos III v.
Northwest Orient Airlines, et al.,8 where we stressed that a treaty is a joint executive-legislative act which
enjoys the presumption that "it was first carefully studied and determined to be constitutional before it
was adopted and given the force of law in the country."
Our executive department of government, thru the Department of Foreign Affairs (DFA) and the
Department of Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D. No.
1069 do not grant the private respondent a right to notice and hearing during the evaluation stage of an
extradition process.9 This understanding of the treaty is shared by the US government, the other party to
the treaty.10 This interpretation by the two governments cannot be given scant significance. It will be
presumptuous for the Court to assume that both governments did not understand the terms of the treaty
they concluded.
Yet, this is not all. Other countries with similar extradition treaties with the Philippines have expressed the
same interpretation adopted by the Philippine and US governments. Canadian11 and Hongkong12
authorities, thru appropriate note verbales communicated to our Department of Foreign Affairs, stated in
unequivocal language that it is not an international practice to afford a potential extraditee with a copy of
the extradition papers during the evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to notice
and hearing as required by our Constitution. He buttresses his position by likening an extradition
proceeding to a criminal proceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process
of extradition does not involve the determination of the guilt or innocence of an accused.13 His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be
invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation.14 As
held by the US Supreme Court in United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany
a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty."15
There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial.16 In
contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards.17 In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt for conviction18 while a fugitive may be
ordered extradited "upon showing of the existence of a prima facie case."19 Finally, unlike in a criminal
case where judgment becomes executory upon being rendered final, in an extradition proceeding, our
courts may adjudge an individual extraditable but the President has the final discretion to extradite him.20
The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in
balancing the equities of the case and the demands of the nation's foreign relations before making the
ultimate decision to extradite.21
As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former. This we hold for the procedural due process required by a given set of
circumstances "must begin with a determination of the precise nature of the government function involved
as well as the private interest that has been affected by governmental action."22 The concept of due
process is flexible for "not all situations calling for procedural safeguards call for the same kind of
procedure."23
Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and hearing
considering the alleged threat to his liberty "which may be more priceless than life."24 The supposed
threat to private respondent’s liberty is perceived to come from several provisions of the RP-US Extradition
Treaty and P.D. No. 1069 which allow provisional arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:
"PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States
Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against
the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application and the reasons
for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60)
days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has
not received the formal request for extradition and the supporting documents required in Article 7."
(emphasis supplied)
In relation to the above, Section 20 of P.D. No. 1069 provides:
"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may, pursuant to the relevant
treaty or convention and while the same remains in force, request for the provisional arrest of the accused,
pending receipt of the request for extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation,
Manila, either through the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt
of the request immediately secure a warrant for the provisional arrest of the accused from the presiding
judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue
the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation
through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not received
the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be
released from custody." (emphasis supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be
provisionally arrested only pending receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to the DOJ. It is undisputed that until
today, the United States has not requested for private respondent’s provisional arrest. Therefore, the
threat to private respondent’s liberty has passed. It is more imagined than real.
Nor can the threat to private respondent’s liberty come from Section 6 of P.D. No. 1069, which provides:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon
receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused
to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for
the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to
the presiding judge that the immediate arrest and temporary detention of the accused will best serve the
ends of justice. . .
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case." (emphasis supplied)
It is evident from the above provision that a warrant of arrest for the temporary detention of the accused
pending the extradition hearing may only be issued by the presiding judge of the extradition court upon
filing of the petition for extradition. As the extradition process is still in the evaluation stage of pertinent
documents and there is no certainty that a petition for extradition will be filed in the appropriate
extradition court, the threat to private respondent’s liberty is merely hypothetical.
Sixth. To be sure, private respondent’s plea for due process deserves serious consideration involving as it
does his primordial right to liberty. His plea to due process, however, collides with important state interests
which cannot also be ignored for they serve the interest of the greater majority. The clash of rights
demands a delicate balancing of interests approach which is a "fundamental postulate of constitutional
law."25 The approach requires that we "take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation."26 These interests usually consist in the
exercise by an individual of his basic freedoms on the one hand, and the government’s promotion of
fundamental public interest or policy objectives on the other.27
In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process
predicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of
life, liberty, or property without due process of law . . ." Without a bubble of doubt, procedural due process
of law lies at the foundation of a civilized society which accords paramount importance to justice and
fairness. It has to be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more
weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the
United States of persons charged with violation of some of its laws. Petitioner also emphasizes the need to
defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not
violate the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of
the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner
Secretary of Justice. In Angara v. Electoral Commission, we held that the "Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."28 Under our constitutional scheme, executive power is vested in the
President of the Philippines.29 Executive power includes, among others, the power to contract or
guarantee foreign loans and the power to enter into treaties or international agreements.30 The task of
safeguarding that these treaties are duly honored devolves upon the executive department which has the
competence and authority to so act in the international arena.31 It is traditionally held that the President
has power and even supremacy over the country’s foreign relations.32 The executive department is aptly
accorded deference on matters of foreign relations considering the President’s most comprehensive and
most confidential information about the international scene of which he is regularly briefed by our
diplomatic and consular officials. His access to ultra-sensitive military intelligence data is also unlimited.33
The deference we give to the executive department is dictated by the principle of separation of powers.
This principle is one of the cornerstones of our democratic government. It cannot be eroded without
endangering our government.
The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate
the extradition of persons covered by treaties duly entered by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a
criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of
the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes.
In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all throughout the length and breadth of the extrajudicial
proceedings. Procedural due process requires a determination of what process is due, when it is due, and
the degree of what is due. Stated otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in turn depends on the extent to which
an individual will be "condemned to suffer grievous loss."34 We have explained why an extraditee has no
right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No.
1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet
the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of
the request for his extradition is merely moved to the filing in court of the formal petition for extradition.
The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition
process to accommodate the more compelling interest of the State to prevent escape of potential
extraditees which can be precipitated by premature information of the basis of the request for his
extradition. No less compelling at that stage of the extradition proceedings is the need to be more
deferential to the judgment of a co-equal branch of the government, the Executive, which has been
endowed by our Constitution with greater power over matters involving our foreign relations. Needless to
state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition
process moves from the administrative stage to the judicial stage and to the execution stage depending on
factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege
of notice and hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to the United States. There is
no denial of due process as long as fundamental fairness is assured a party.
We end where we began. A myopic interpretation of the due process clause would not suffice to resolve
the conflicting rights in the case at bar. With the global village shrinking at a rapid pace, propelled as it is by
technological leaps in transportation and communication, we need to push further back our horizons and
work with the rest of the civilized nations and move closer to the universal goals of "peace, equality,
justice, freedom, cooperation and amity with all nations."35 In the end, it is the individual who will reap the
harvest of peace and prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar
promulgated on January18, 2000 is REVERSED. The assailed Order issued by the public respondent judge on
August 9, 1999 is SET ASIDE. The temporary restraining order issued by this Court on August 17, 1999 is
made PERMANENT. The Regional Trial Court of Manila, Branch 25 is enjoined from conducting further
proceedings in Civil Case No. 99-94684.
SO ORDERED.

IN RE: PETITION OF ARTURO EFREN GARCIA for admission to the Philippine Bar without taking the
examination. ARTURO EFREN GARCIA, petitioner.
RESOLUTION
BARRERA, J.:
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to
the required bar examinations. In his verified petition, he avers, among others, that he is a Filipino citizen
born in Bacolor City, Province of Negros Occidental, of Filipino parentage; that he had taken and finished in
Spain, the course of "Bachillerato Superior"; that he was approved, selected and qualified by the "Instituto
de Cervantes" for admission to the Central University of Madrid where he studied and finished the law
course graduating there as "Licenciado En Derecho"; that thereafter he was allowed to practice the law
profession in Spain; and that under the provision of the Treaty of Academic Degrees and the Exercise of
Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law
profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition on the following grounds:
(1) the provisions of the Treaty on Academic Degrees and the Exercise of Professions between the Republic
of the Philippines and the Spanish State can not be invoked by applicant. Under Article 11 thereof;
The Nationals of each of the two countries who shall have obtained recognition of the validity of their
academic degrees by virtue of the stipulations of this Treaty, can practice their professions within the
territory of the Other, . . .. (Emphasis supplied).
from which it could clearly be discerned that said Treaty was intended to govern Filipino citizens desiring to
practice their profession in Spain, and the citizens of Spain desiring to practice their professions in the
Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is
therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish
nationals desiring to practice in the Philippines.
(2) Article I of the Treaty, in its pertinent part, provides .
The nationals of both countries who shall have obtained degree or diplomas to practice the liberal
professions in either of the Contracting States, issued by competent national authorities, shall be deemed
competent to exercise said professions in the territory of the Other, subject to the laws and regulations of
the latter. . . ..
It is clear, therefore, that the privileges provided in the Treaty invoked by the applicant are made expressly
subject to the laws and regulations of the contracting State in whose territory it is desired to exercise the
legal profession; and Section 1 of Rule 127, in connection with Sections 2,9, and 16 thereof, which have the
force of law, require that before anyone can practice the legal profession in the Philippine he must first
successfully pass the required bar examinations; and
(3) The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish State
could not have been intended to modify the laws and regulations governing admission to the practice of
law in the Philippines, for the reason that the Executive Department may not encroach upon the
constitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in
the Philippines, the lower to repeal, alter or supplement such rules being reserved only to the Congress of
the Philippines. (See Sec. 13, Art VIII, Phil. Constitution).
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., on leave, took no part.
Concepcion, J., took no part.
G.R. No. L-69401
RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL, BILLY
ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN
TAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE
FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED
COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING
OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL DEFENSE COMMAND, OTHERWISE
KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE
MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE
COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.
CRUZ, J.:
On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the
home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street, Zamboanga
City, in search of loose firearms, ammunition and other explosives. 1
The military operation was commonly known and dreaded as a "zona," which was not unlike the feared
practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting
the persons fingered by a hooded informer, and executing them outright (although the last part is not
included in the modern refinement).
The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No
one was hurt as presumably the purpose was merely to warn the intruders and deter them from entering.
Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough. The
soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2
The besieged compound surrendered the following morning, and sixteen male occupants were arrested,
later to be finger-printed, paraffin-tested and photographed over their objection. The military also
inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of
ammunition found in the premises. 3
On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamus with
preliminary injunction and restraining order. Their purpose was to recover the articles seized from them, to
prevent these from being used as evidence against them, and to challenge their finger-printing,
photographing and paraffin-testing as violative of their right against self-incrimination.4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to
have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court,
Zamboanga City. 5 After receiving the testimonial and documentary evidence of the parties, he submitted
the report and recommendations on which this opinion is based. 6
The petitioners demand the return of the arms and ammunition on the ground that they were taken
without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact
admitted by the respondents, "but with avoidance. 7
Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question,
provided as follows:
Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer as may be authorized by law, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
It was also declared in Article IV, Section 4(2) that-
Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
The respondents, while admitting the absence of the required such warrant, sought to justify their act on
the ground that they were acting under superior orders. 8 There was also the suggestion that the measure
was necessary because of the aggravation of the peace and order problem generated by the assassination
of Mayor Cesar Climaco. 9
Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners were
suspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. As
eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10
The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times and under all circumstances. No doctrine, involving more
pernicious consequences, was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government.
The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the
non-observance of the constitutional guaranty against unreasonable searches and seizures. There was no
state of hostilities in the area to justify, assuming it could, the repressions committed therein against the
petitioners.
It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to
take them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the
conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated
reports that they were stockpiling weapons.
The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the
time of the "zona," they were merely suspected of the mayor's slaying and had not in fact even been
investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily
pronounced by the military.
Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been
any less entitled to the protection of the Constitution, which covers both the innocent and the guilty. This is
not to say, of course, that the Constitution coddles criminals. What it does simply signify is that, lacking the
shield of innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved
sentence, but from arbitrary punishment. Every person is entitled to due process. It is no exaggeration that
the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under
the Bill of Rights, a majority of one.
If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly
gave every appearance of doing so. This is truly regrettable for it was incumbent on them, especially during
those tense and tindery times, to encourage rather than undermine respect for the law, which it was their
duty to uphold.
In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the
military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply by-
passed the civil courts, which had the authority to determine whether or not there was probable cause to
search the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on
their own unauthorized determination of the petitioner's guilt.
The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew
where the petitioners were. They had every opportunity to get a search warrant before making the raid. If
they were worried that the weapons inside the compound would be spirited away, they could have
surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all
why they should disregard the orderly processes required by the Constitution and instead insist on
arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion.
Conceding that the search was truly warrantless, might not the search and seizure be nonetheless
considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement
authorities have to do is force their way into any house and then pick up anything they see there on the
ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy
redundancy.
When the respondents could have easily obtained a search warrant from any of the TEN civil courts then
open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered premises on
the verbal order of their superior officers. One cannot just force his way into any man's house on the illegal
orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official
intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle.
It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not
enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to
be committed, being committed, or just committed, what was that crime? There is no allegation in the
record of such a justification. Parenthetically, it may be observed that under the Revised Rule 113, Section
5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the
recent case of People v. Burgos. 14
If follows that as the search of the petitioners' premises was violative of the Constitution, all the firearms
and ammunition taken from the raided compound are inadmissible in evidence in any of the proceedings
against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge Learned Hand
observed, "Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit
by their wrong, will the wrong be repressed. 16 Pending determination of the legality of such articles,
however, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding
courts may decide. 17
The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight
comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice
Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a
witness against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be material."
The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past,
banished with the secret marshals and their covert license to kill without trial. We must be done with
lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be the
first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De
Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that there be a
return to the force and rule of law."
All of us must exert efforts to make our country truly free and democratic, where every individual is
entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel for all,
the innocent as well as the guilty, including the basest of criminals.
WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL
and all the articles seized as a result thereof are inadmissible in evidence against the petitioners in any
proceedings. However, the said articles shall remain in custodia legis pending the outcome of the criminal
cases that have been or may later be filed against the petitioners.
SO ORDERED.
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada
commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police
(the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility
patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief
of Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the
Interior and Local Government were tasked to execute and implement the said order. In compliance with
the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated
Letter of Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols,
called Task Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership
of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.[3] In
the Memorandum, the President expressed his desire to improve the peace and order situation in Metro
Manila through a more effective crime prevention program including increased police patrols.[4] The
President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution,
the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper
deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of the Marines in the anti-crime campaign are
merely temporary in nature and for a reasonable period only, until such time when the situation shall have
improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines
partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and
other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability of the local police alone to handle.
The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban
areas will reduce the incidence of crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep
Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of
high-profile crimes especially those perpetrated by organized crime syndicates whose members include
those that are well-trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and
the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state
against insurgents and other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military
and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police aside from neutralizing
crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta
Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA
and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul LOI
02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional,
arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION,
IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY,
THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION
OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE
CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING
THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the
rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the
Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required
the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General
submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the
Marines, contending, among others, that petitioner has no legal standing; that the question of deployment
of the Marines is not proper for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up of one police officer and
one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether
or not the Presidents factual determination of the necessity of calling the armed forces is subject to judicial
review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols
violates the constitutional provisions on civilian supremacy over the military and the civilian character of
the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the
issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
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 grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial review
only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate
case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise
of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of
the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged.[13] The term interest means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest.[14] The gist of the
question of standing is whether a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of
law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of
its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental
purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law
profession and to improve the administration of justice is alien to, and cannot be affected by the
deployment of the Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present
action. To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue.
Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not
shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a
result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been
arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP
projects as injurious is the supposed militarization of law enforcement which might threaten Philippine
democratic institutions and may cause more harm than good in the long run. Not only is the presumed
injury not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully established a direct and personal injury as a
consequence of the questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no
standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof,
satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of
a suit which does not satisfy the requirement of legal standing when paramount interest is involved.[16] In
not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people.[17] Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside technicalities of
procedure.[18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.
Moreover, because peace and order are under constant threat and lawless violence occurs in increasing
tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court
to relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this
regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call
out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated provision. According to
the IBP, no emergency exists that would justify the need for the calling of the military to assist the police
force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the Marines.
Thus, the IBP prays that this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the
armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of
factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the
extent of judicial review. But, while this Court gives considerable weight to the parties formulation of the
issues, the resolution of the controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the power involved may
be no more than the maintenance of peace and order and promotion of the general welfare.[20] For one,
the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or
anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the
latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the peace.
[Rossiter, The American Presidency]. The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by
the relative want of an emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot be said to exclude the
Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will
reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not susceptible to review by the
judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court
review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized
by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of cases wherein the Court
hesitates to rule on are political questions. The reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the
political question being a function of the separation of powers, the courts will not normally interfere with
the workings of another co-equal branch unless the case shows a clear need for the courts to step in to
uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of government. Thus, if an issue is
clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of
government or to the people themselves then it is held to be a political question. In the classic formulation
of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a courts undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarassment from multifarious pronouncements by various
departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he 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.[25] Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court.[27] When political questions are involved, the Constitution limits the determination as to
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent
and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly
decide matters over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into the question of
whether such exercise has been made in grave abuse of discretion.[30] A showing that plenary power is
granted either department of government, may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion,
he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of
the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule
the Presidents wisdom or substitute its own. However, this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the
petitioner to show that the Presidents decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there exist no
justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that
grave abuse was committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this Courts duty of
purposeful hesitation[32] before declaring an act of another branch as unconstitutional, only where such
grave abuse of discretion is clearly shown shall the Court interfere with the Presidents judgment. To doubt
is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary
power to call out the armed forces and to determine the necessity for the exercise of such power. Section
18, Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief,
provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part
thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of the calling
out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the
writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may
review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing
with the revocation or review of the Presidents action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have
simply lumped together the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain
matters, it may not, by interpretation or construction, be extended to other matters.[33] That the intent of
the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless
violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law.
This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas
corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the
Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by
anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the
first sentence: The President may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be
handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress
lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must
necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial
review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant
the President the widest leeway and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must
be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in
the case of the power to call out the armed forces. The only criterion is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts.
Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a need to call out the armed
forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call
out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to
have any effect at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be
a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of
the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in
order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the Presidents exercise of judgment deserves to be
accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups,
kidnappings and carnappings continue to occur in Metro Manila...[35] We do not doubt the veracity of the
Presidents assessment of the situation, especially in the light of present developments. The Court takes
judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment described in the LOI 2000.
Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in
law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the
IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in
violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause.
The calling of the Marines in this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In
fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility
patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol
procedures.[38] It is their responsibility to direct and manage the deployment of the Marines.[39] It is,
likewise, their duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme
over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an insidious incursion of the military in the
task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the
aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of
a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether
the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or
control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP,
there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the
joint visibility patrols does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can
there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the
military in the implementation and execution of certain traditionally civil functions. As correctly pointed out
by the Solicitor General, some of the multifarious activities wherein military aid has been rendered,
exemplifying the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59]
What we have here is mutual support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force for
domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for
the power to call, the use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the Philippine Marines. Under the
Posse Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute
the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the
US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a
manner that the military personnel subjected the citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE
LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or
prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate the
Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether there
is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of
the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the
observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident from
Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to
them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The conclusion is
that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a
handful of Philippine Marines constitutes no impermissible use of military power for civilian law
enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however,
are unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless,
petitioner IBP can show, which it has not, that in the deployment of the Marines, the President has violated
the fundamental law, exceeded his authority or jeopardized the civil liberties of the people, this Court is
not inclined to overrule the Presidents determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has
complained that his political or civil rights have been violated as a result of the deployment of the Marines.
It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility
patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure in their
homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
G.R. No. L-54558 May 22, 1987
EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO
MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO, DANILO
R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO. 34, and THE MINISTER
OF NATIONAL DEFENSE, respondents.
No. L-69882May 22, 1987
EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL, AFP, MINISTER OF
NATIONAL DEFENSE and THE DIRECTOR OF PRISONS, respondents.
Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.
Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-Maclang
Rene Saguisag for petitioner Mac Aceron.
Joaquin Misa for petitioner Ester Misa-Jimenez.
Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-Maclang.
Jaime Villanueua for petitioner Danilo R. de Ocampo.
Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo Olaguer and Othoniel
Jimenez.
Wigberto Tanada for petitioners Olaguer and Maclang
GANCAYCO, J.:
Filed with this Court are two Petitions wherein the fundamental question is whether or not a military
tribunal has the jurisdiction to try civilians while the civil courts are open and functioning. The two Petitions
have been consolidated inasmuch as the issues raised therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V. Jimenez, Ester Misa-
Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los Santos Maclang, Teodorico N. Diesmos, Rene
J. Marciano, Danilo R. De Ocampo and Victoriano C. Amado were arrested by the military authorities. They
were all initially detained at Camp Crame in Quezon City. They were subsequently transferred to the
detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who remained in detention
at Camp Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities sometime in June, 1980
and was, thereafter, also incarcerated at Camp Bagong Diwa. All of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the recommendation of the
respondent Judge Advocate General and the approval of the respondent Minister of National Defense.2
The case was designated as Criminal Case No. MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the Philippines 3 created the
respondent Military Commission No 34 to try tile criminal case filed against the petitioners. 4 On July 30,
1980, an amended charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of
explosives and incendiary devices; (2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy
to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy to
assassinate Messrs. Arturo Tangco, Jose Roño and Onofre Corpus; (5) arson of nine buildings; (6) attempted
murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and (7)
conspiracy and proposal to commit rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued.
In the course of the proceedings, particularly on August 19, 1980, the petitioners went to this Court and
filed the instant Petition for prohibition and habeas corpus." 6 They sought to enjoin the respondent
Military Commission No. 34 from proceeding with the trial of their case. They likewise sought their release
from detention by way of a writ of habeas corpus. The thrust of their arguments is that military
commissions have no jurisdiction to try civilians for offenses alleged to have been committed during the
period of martial law. They also maintain that the proceedings before the respondent Military Commission
No. 34 are in gross violation of their constitutional right to due process of law.
On September 23, 1980, the respondents filed their Answer to the Petition. 7 On November 20, 1980, the
petitioners submmitted their reply to the Answer. 8 In a Motion filed with this Court on July 25, 1981,
petitioner Olaguer requested that the Petition be considered withdrawn as far as he is concerned. 9 In the
Resolution of this Court dated July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the
respondents filed a Rejoinder to the Reply submitted by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent Military Commission No. 34
passed sentence convicting the petitioners and imposed upon them the penalty of death by electrocution.
Thus, on February 14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this
Court and filed the other instant Petition, this time for habeas corpus, certiorari, prohibition and
mandamus. They also sought the issuance of a writ of preliminary injunction. 12 The respondents named in
the Petition are the Chief of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the
Judge Advocate General, the Minister of National Defense and the Director of the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking any further action on the case
against the petitioners, and from implementing the judgment of conviction rendered by the respondent
Military Commission No. 34 for the reason that the same is null and void. The petitioners also seek the
return of all property taken from them by the respondents concerned. Their other arguments in the earlier
Petition are stressed anew.
On August 9, 1985, the respondents filed their Answer to the Petition. 13 On September 12, 1985, this
Court issued a temporary restraining order enjoining the respondents from executing the Decision of the
respondent Military Commission No. 34 14 On February 18, 1986, the petitioners submitted an extensive
Brief. 15 Thereafter, and in due time, the cases were submitted for decision.
In resolving these two Petitions, We have taken into account several supervening events which have
occurred hitherto, to wit —
(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No. 2045 officially
lifting martial law in the Philippines. The same Proclamation revoked General Order No. 8 (creating military
tribunals) and directed that "the military tribunals created pursuant thereto are hereby dissolved upon final
determination of case's pending therein which may not be transferred to the civil courts without
irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances which
render prosecution of the cases difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January, 1981. On the other hand,
petitioners Eduardo Olaguer and Othoniel Jimenez obtained provisional liberty on January 23, 1986. 16 The
rest of the petitioners have been released sometime before or after President Corazon C. Aquino assumed
office in February, 1986.
The sole issue in habeas corpus proceedings is detention. 17 When the release of the persons in whose
behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the
writ becomes moot and academic. 18 Inasmuch as the herein petitioners have been released from their
confinement in military detention centers, the instant Petitions for the issuance of a writ of habeas corpus
should be dismissed for having become moot and academic.
We come now to the other matters raised in the two Petitions. The main issue raised by the petitioners is
whether or not military commissions or tribunals have the jurisdiction to try civilians for offenses allegedly
committed during martial law when civil courts are open and functioning.
The petitioners maintain that military commissions or tribunals do not have such jurisdiction and that the
proceedings before the respondent Military Commission No. 34 are in gross violation of their constitutional
right to due process of law. The respondents, however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians for offenses allegedly
committed before, and more particularly during a period of martial law, as well as the other issues raised
by the petitioners, have been ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission
No. 2. 19 The pertinent portions of the main opinion of the Court are as follows —
We hold that the respondent Military Commission No. 2 has been lawfully constituted and validly vested
with jurisdiction to hear the cases against civilians, including the petitioner.
l. The Court has previously declared that the proclamation of Martial Law ... on September 21, 1972, ... is
valid and constitutional and that its continuance is justified by the danger posed to the public safety. 20
2. To preserve the safety of the nation in times of national peril, the President of the Philippines
necessarily possesses broad authority compatible with the imperative requirements of the emergency. On
the basis of this, he has authorized in General Order No. 8 . . . the Chief of Staff, Armed Forces of the
Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases
as may be referred to them." In General Order No. 12 ... , the military tribunals were vested with
jurisdiction "exclusive of the civil courts," among others, over crimes against public order, violations of the
Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the
emergency, are directly related to the quelling of the rebellion and preservation of the safety and security
of the Republic. ... These measures he had the authority to promulgate, since this Court recognized that the
incumbent President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of the new
(1973) Constitution, had the authority to "promulgate proclamations, orders and decrees during the period
of martial law essential to the security and preservation of the Republic, to the defense of the political and
social liberties of the people and to the institution of reforms to prevent the resurgence of the rebellion or
insurrection or secession or the threat thereof ... " 21
3. Petitioner nevertheless insists that he being a civilian, his trial by military commission deprives him of his
right to due process, since in his view the due process guaranteed by the Constitution to persons accused
of "ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the
existence of martial law. It is, of course, essential that in a martial law situation, the martial law
administrator must have ample and sufficient means to quell the rebellion and restore civil order. Prompt
and effective trial and punishment of offenders have been considered as necessary in a state of martial law,
as a mere power of detention may be wholly inadequate for the exigency.22 " ... martial law ... creates an
exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against
the law of war, as well as those of a civil character, triable, ... by military tribunals. 23 "Public danger
warrants the substitution of executive process for judicial process." 24 . ... "The immunity of civilians from
military jurisdiction must, however, give way in areas governed by martial law. When it is absolutely
imperative for public safety, legal processes can be superseded and military tribunals authorized to
exercise the jurisdiction normally vested in courts. 25 . ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form of tribunal in criminal
cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to
defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process
of law does not necessarily mean a judicial proceeding in the regular courts. 26 ...
This ruling has been affirmed, although not unanimously, in at least six other cases, to wit: Gumaua
v.Espino, 27 Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v. Special Military Commission No. 1, 30
Ocampo v. Military Commission No. 25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25. 32
These rulings notwithstanding, the petitioners anchor their argument on their prayer that the ruling in
Aquino, Jr. be appraised anew and abandoned or modified accordingly. After a thorough deliberation on
the matter, We find cogent basis for re-examining the same.
Some recent pronouncements of this Court could be considered as attempts to either abandon or modify
the ruling in Aquino, Jr.
In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the Philippines and several
other persons were charged with Serious Illegal Detention before the Court of First Instance of
Maguindanao sometime in October, 1982. The military officer sought to effect the transfer of the case
against him to the General Court Martial for trial pursuant to the provisions of Presidential Decree No.
1850. The trial court disallowed such transfer for the reason that the said Decree is unconstitutional
inasmuch as it violates the due process and equal protection clauses of the Constitution, as well as the
constitutional provisions on social justice, the speedy disposition of cases, the republican form of
government, the integrity and independence of the judiciary, and the supremacy of civilian authority over
the military,
When the matter was elevated to this Court by way of a Petition for certiorari, prohibition and mandamus,
the Court decided that a ruling on the constitutional issues raised was not necessary. With the view that
practical and procedural difficulties will result from the transfer sought, this Court resolved to dismiss the
Petition for lack of merit.
In Animas v. The Minister of National Defense, 34 a military officer and several civilians were charged with
murder alleged to have been committed sometime in November, 1971. All of the said accused were
recommended for prosecution before a military tribunal. in the course of the proceedings, the said accused
went to this Court on a Petition for certiorari and challenged the jurisdiction of the military tribunal over
their case. The petitioners contended that General Order No. 59 upon which the jurisdiction of the military
tribunal is anchored refers only to the crime of illegal possession of firearms and explosives in relation to
other crimes committed with a political complexion. They stressed that the alleged murder was devoid of
any political complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transfer of the criminal
proceedings to the civil courts after noting that with martial law having been lifted in the country in 1981,
all cases pending before the military tribunals should, as a general rule, be transferred to the civil courts.
The Court was also of the view that the crime alleged to have been committed did not have any political
complexion. We quote the pertinent portions of the Decision of the Court, to wit —
Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction was concerned and
notwithstanding the shilly-shallying and vacillation characteristic of its implementation, this Court relied on
the enunciated policy of normalization in upholding the primacy of civil courts. This policy meant that as
many cases as possible involving civilians being tried by military tribunals as could be transferred to civil
courts should be turned over immediately. In case of doubt, the presumption was in favor of civil courts
always trying civilian accused.
xxx xxx xxx
The crime for which the petitioners were charged was committed ... long before the proclamation of
martial law. ... Now that it is already late 1986, and martial law is a thing of the past, hopefully never more
to return, there is no more reason why a murder committed in 1971 should still be retained, at this time,
by a military tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio Teehankee 35 and Madame
Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they hold that military commissions or tribunals
have no jurisdiction to try civilians for alleged offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his
life or his liberty), the accused shall be entitled to, among others, a trial. 37 The trial contemplated by the
due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process,
not by executive or military process. Military commissions or tribunals, by whatever name they are called,
are not courts within the Philippine judicial system. As explained by Justice Teehankee in his separate
dissenting opinion-
... Civilians like (the) petitioner placed on trial for civil offenses under general law are entitled to trial by
judicial process, not by executive or military process.
Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as
are duly established by law. Judicial power exists only in the courts, which have "exclusive power to hear
and determine those matters which affect the life or liberty or property of a citizen. 38
Since we are not enemy-occupied territory nor are we under a military government and even on the
premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over
civilians for civil offenses committed by them which are properly cognizable by the civil courts that have
remained open and have been regularly functioning.39 ...
And in Toth v. Quarles,40 the U.S. Supreme Court furtherstressed that the assertion of military authority
over civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army veterans (estimated to number
more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military
charges" and subjected to military trials for offenses committed while they were in the military service
prior to their discharge, that "the presiding officer at a court martial is not a judge whose objectivity and
independence are protected by tenure and undiminished salary and nurtured by the judicial tradition, but
is a military law officer. Substantially different rules of evidence and procedure apply in military trials. Apart
from these differences, the suggestion of the possibility of influence on the actions of the court martial by
the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct
command authority over its members is a pervasive one in military law, despite strenuous efforts to
eliminate the danger."
The late Justice Black ... added that (A) Court-Martial is not yet an independent instrument of justice but
remains to a significant degree a specialized part of the over-all mechanism by which military discipline is
preserved," and that ex-servicemen should be given "the benefits of a civilian court trial when they are
actually civilians ... Free countries of the world have tried to restrict military tribunals to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.
Moreover, military tribunals pertain to the Executive Department of the Government and are simply
instrumentalities of the executive power, provided by the legislature for the President as Commander-in-
Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized
under his orders or those of his authorized military representatives. 41 Following the principle of
separation of powers underlying the existing constitutional organization of the Government of the
Philippines, the power and the duty of interpreting the laws as when an individual should be considered to
have violated the law) is primarily a function of the judiciary. 42 It is not, and it cannot be the function of
the Executive Department, through the military authorities. And as long as the civil courts in the land
remain open and are regularly functioning, as they do so today and as they did during the period of martial
law in the country, military tribunals cannot try and exercise jurisdiction over civilians for offenses
committed by them and which are properly cognizable by the civil courts. 43 To have it otherwise would be
a violation of the constitutional right to due process of the civilian concerned.
In addition to this pronouncement, We take note of the observation made by the Solicitor General to the
effect that the death penalty imposed upon the petitioners by the respondent Military Commission No. 34
appears to have been rendered too hastily to the prejudice to the petitioners, and in complete disregard of
their constitutional right to adduce evidence on their behalf. We quote the pertinent portions of the
Manifestation submitted by the Solicitor General, to wit —
Prior to the session of December 4, 1984, when the respondent Commission rendered its sentence,
petitioners have requested the prosecution to provide them with copies of the complete record of trial,
including the evidences presented against them, but the prosecution dillydallied and failed to provide them
with the document requested. According to petitioners, they needed the documents to adequately prepare
for their defense.
But a few days before December 4, 1984 the prosecution suddenly furnished them with certain transcripts
of the proceedings which were not complete. Petitioner Othoniel Jimenez was scheduled to start with the
presentation of his evidence on said date and he requested that his first witness be served with subpoena.
The other petitioners, as agreed upon, were to present their evidence after the first one, Othoniel Jimenez,
has finished presenting his evidence. But on that fateful day, December 4, 1984, the witness requested to
be served with subpoena was not around, because as shown by the records, he was not even served with
the requested subpoena. But in spite of that, respondent Military Commission proceeded to ask each one
of the petitioners if they are ready to present their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because the prosecution, which performs
the duties and functions of clerk of court, failed to subpoena his witness, and that the other petitioners
were not ready because it was not yet their turn to do so, the Commission abruptly decided that
petitioners are deemed to have waived the presentation of evidence in their behalf, and considered the
case submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and the Commission rendered its
sentence finding petitioners guilty of all the charges against them and imposing upon them the penalty of
death by electrocution. 44
Thus, even assuming arguendo that the respondent Military Commission No. 34 does have the jurisdiction
to try the petitioners, the Commission should be deemed ousted of its jurisdiction when, as observed by
the Solicitor General, the said tribunal acted in disregard of the constitutional rights of the accused. Indeed,
it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that
rendered the judgment in question is deemed ousted of jurisdiction. 45
Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially lifting martial law in the
Philippines and abolishing all military tribunals created pursuant to the national emergency effectively
divests the respondent Military Commission No. 34 (and all military tribunals for that matter) of its
supposed authority to try civilians, including the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals have the jurisdiction to try
civilians as long as the period of national emergency (brought about by public disorder and similar causes)
lasts. Undoubtedly, Proclamation No. 2045 is an acknowledgment on the part of the Executive Department
of the Government that the national emergency no longer exists. Thereafter, following the theory relied
upon in the main opinion, all military tribunals should henceforth be considered functus officio in their
relationship with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein should eventually be
transferred to the civil courts for proper disposition. The principle of double jeopardy would not be an
obstacle to such transfer because an indispensable element of double jeopardy is that the first tribunal
which tried the case must be of competent jurisdiction.46 As discussed earlier, the military tribunals are
devoid of the required jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land are open and functioning,
military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them.
Whether or not martial law has been proclaimed throughout the country or over a part thereof is of no
moment. The imprimatur for this observation is found in Section 18, Article VII of the 1987 Constitution, to
wit —
A state of martial law, does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the
writ. (Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the Filipino people towards the
restoration of the vital role of the judiciary in a free country-that of the guardian of the Constitution and
the dispenser of justice without fear or favor.
No longer should military tribunals or commissions exercise jurisdiction over civilians for offenses allegedly
committed by them when the civil courts are open and functioning. No longer may the exclusive judicial
power of the civil courts, beginning with the Supreme Court down to the lower courts 47 be appropriate by
any military body or tribunal, or even diluted under the guise of a state of martial law, national security and
other similar labels.
At this juncture, We find it appropriate to quote a few paragraphs from the ponencia of Mr. Justice
Gutierrez in Animas v. The Minister of National Defense , 48 viz —
The jurisdiction given to military tribunals over common crimes and civilian(s) accused at a time when all
civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the
history of the Philippine judiciary.
The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and
insecurity felt by many members of the judiciary due to various causes both real and imagined, and the
many judicial problems spawned by extended authoritarian rule which effectively eroded judicial
independence and self-respect will require plenty of time and determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to them is only a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee had this to say —
I only wish to add that the great significance of our judgment in this case is that we reestablish and
reinstate the fundamental principle based on civilian supremacy over the military as urged in vain in my
dissent in the case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that "Civilians placed on
trial for offenses under general law are entitled to trial by judicial process, not by executive or military
process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior
courts as are duly established by law. Military commissions, or tribunals, are not courts and do not form
part of the judicial system. Since we are not enemy-occupied territory nor are we under a military
government and even on the premise that martial law continues in force, the military tribunals cannot try
and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable
by the civil courts that have remained open and have been regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process is best exemplified in the sham
military trial of the martyred former Senator Benigno S. Aquino, Jr., whereby he was deprived (1) by the
summary ex parte investigation by the Chief prosecution staff of the JAGO of his right to be informed of the
charges against him and of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of
the 1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the subversion
charges against him before the proper court of first instance as required under Section 5 of the Anti-
Subversion Act, R.A. 1700 and of the other charges against him before the proper civilian officials and to
confront and cross-examine the witnesses against him under R.A. 5180; (3) of the right to be tried by
judicial process, by the regular independent courts of justice, with all the specific constitutional, statutory
and procedural safeguards embodied in the judicial process and presided over not by military officers; and
(4) of the right to appeal to the regular appellate courts and to judicial review by this Court in the event of
conviction and imposition of a sentence of death or life imprisonment which the charges carry and wherein
a qualified majority of ten (10) votes for affirmance of the death penalty is required. In fine, he was denied
due process of law as guaranteed under the Bill of Rights which further ordains that "No person shall be
held to answer for a criminal offense without due process of law."Worse, his trial by a military tribunal
created by the then President and composed of the said President's own military subordinates without
tenure and of non-lawyers (except the law member) and of whose decision the President is the final
reviewing authority as Commander-in-Chief of the Armed Forces deprived him of a basic constitutional
right to be heard by a fair and impartial tribunal, considering that the said President had publicly declared
the evidence against petitioner "not only strong (but) overwhelming" and thereby prejudged and
predetermined his guilt, and none of his military subordinates could be expected to go against their
Commander-in-Chief's declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish past, when time-tested doctrines,
to borrow a phrase from the then Chief Justice, "shrivelled in the effulgence of the overpowering rays of
martial rule. 49
As stated earlier, We have been asked to re-examine a previous ruling of the Court with a view towards
abandoning or modifying the same. We do so now but not without careful reflection and deliberation on
Our part. Certainly, the rule of stare decisis is entitled to respect because stability in jurisprudence is
desirable. Nonetheless, reverence for precedent, simply as precedent, cannot prevail when
constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned
or modified should be abandoned or modified accordingly. After all, more important than anything else is
that this Court should be right. 50
Accordingly, it is Our considered opinion, and We so hold, that a military commission or tribunal cannot try
and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly
committed by them as long as the civil courts are open and functioning, and that any judgment rendered
by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal
concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2 52
and all decided cases affirming the same, in so far as they are inconsistent with this pronouncement,
should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are DISMISSED for having become
moot and academic. The Petitions for certiorari and prohibition are hereby GRANTED. The creation of the
respondent Military Commission No. 34 to try civilians like the petitioners is hereby declared
unconstitutional and all its proceedings are deemed null and void. The temporary restraining order issued
against the respondents enjoining them from executing the Decision of the respondent Military
Commission No. 34 is hereby made permanent and the said respondents are permanently prohibited from
further pursuing Criminal Case No. MC-34-1 against the petitioners. The sentence rendered by the
respondent Military Commission No. 34 imposing the death penalty on the petitioners is hereby vacated
for being null and void, and all the items or properties taken from the petitioners in relation to the said
criminal case should be returned to them immediately. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEÑA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa are
charged with a violation of section 60 of Commonwealth Act No. 1, known as the National Defense Law. It
is alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936,
willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said
year, notwithstanding the fact that they had been required to do so. The evidence shows that these two
appellants were duly notified by the corresponding authorities to appear before the Acceptance Board in
order to register for military service in accordance with law, and that the said appellants, in spite of these
notices, had not registered up to the date of the filing of the information.
The appellants do not deny these facts, but they allege in defense that they have not registered in the
military service because Primitivo de Sosa is fatherless and has a mother and a brother eight years old to
support, and Tranquilino Lagman also has a father to support, has no military learnings, and does not wish
to kill or be killed.
Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the accused were sentenced, is
impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the
Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this duty all citizens
may be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful compliance therewith. The duty of the
Government to defend the State cannot be performed except through an army. To leave the organization
of an army to the will of the citizens would be to make this duty of the Government excusable should there
be no sufficient men who volunteer to enlist therein.1ªvvphïl.nët
In the United States the courts have held in a series of decisions that the compulsory military service
adopted by reason of the civil war and the world war does not violate the Constitution, because the power
to establish it is derived from that granted to Congress to declare war and to organize and maintain an
army. This is so because the right of the Government to require compulsory military service is a
consequence of its duty to defend the State and is reciprocal with its duty to defend the life, liberty, and
property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it
was said that, without violating the Constitution, a person may be compelled by force, if need be, against
his will, against his pecuniary interests, and even against his religious or political convictions, to take his
place in the ranks of the army of his country, and risk the chance of being shot down in its defense. In the
case of United States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of property
without due process of law, because, in its just sense, there is no right of property to an office or
employment.
The circumstance that these decisions refer to laws enacted by reason on the actual existence of war does
not make our case any different, inasmuch as, in the last analysis, what justifies compulsory military service
is the defense of the State, whether actual or whether in preparation to make it more effective, in case of
need. The circumstance that the appellants have dependent families to support does not excuse them from
their duty to present themselves before the Acceptance Board because, if such circumstance exists, they
can ask for determent in complying with their duty and, at all events, they can obtain the proper pecuniary
allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So
ordered.
G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner,
vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the
issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing
and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of
postage stamps commemorating the celebration in the City of Manila of the Thirty-third international
Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he
considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the
matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the
respondent publicly announced having sent to the United States the designs of the postage stamps for
printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green,
brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36
and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this
day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant
case, although he admits that the writ may properly restrain ministerial functions. While, generally,
prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than
judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and
in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal,
corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and
"ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include
the challenged act of the respondent Director of Posts in the present case, which act because alleged to be
violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals
to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are
without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the
orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304,
307.)
The more important question raised refers to the alleged violation of the Constitution by the respondent in
issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It
is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article
VI, of the Constitution of the Philippines, which provides as follows:
No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for
the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal
institution, orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle of separation of church and state.
Without the necessity of adverting to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of
church and state is prejudicial to both, for ocassions might arise when the estate will use the church, and
the church the state, as a weapon in the furtherance of their recognized this principle of separation of
church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris
between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions
of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August
29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the
Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom.
All the officers of the Government, from the highest to the lowest, in taking their oath to support and
defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious
freedom, with its inherent limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for
religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds
the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the nation, promote
the general welfare, and secure to themselves and their posterity the blessings of independence under a
regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance
appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a
priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or
to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the
Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code)
because of the secular idea that their observance is conclusive to beneficial moral results. The law allows
divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered
crimes against the fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question
under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:
No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME
AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST
OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and
by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of
any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage
stamps with new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is
hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner
indicated and as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing
of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of
Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount
appropriated in the manner indicated and "as often as may be deemed advantageous to the Government".
The printing and issuance of the postage stamps in question appears to have been approved by authority
of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's
memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer
losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage
stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth
P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be "advantageous to
the Government." Of course, the phrase "advantageous to the Government" does not authorize the
violation of the Constitution. It does not authorize the appropriation, use or application of public money or
property for the use, benefit or support of a particular sect or church. In the present case, however, the
issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and
Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for
the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to
that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936,
incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the
stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned
merely, took advantage of an event considered of international importance "to give publicity to the
Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the
President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the
stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as
originally planned, contains a map of the Philippines and the location of the City of Manila, and an
inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is
not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that congress. It
is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked
with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic
Church, was not the aim and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental results, more or less religious in
character, if the purpose had in view is one which could legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the
complete separation of church and state and curb any attempt to infringe by indirection a constitutional
inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should
be taken that at this stage of our political development nothing is done by the Government or its officials
that may lead to the belief that the Government is taking sides or favoring a particular religious sect or
institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending
circumstances, we have come to the conclusion that there has been no constitutional infraction in the case
at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and
Communications, discretion to misuse postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these officials made use of a poor
judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to
take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a
gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming
within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR and JESUS EDULLANTES,
petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc City Branch V,
BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen
GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay Secretary CONCHITA
MARAYA and Barangay Treasurer LUCENA BALTAZAR, respondents.
AQUINO, J.:1äwphï1.ñët
This case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc City,
regarding the acquisition of the wooden image of San Vicente Ferrer to be used in the celebration of his
annual feast day. That issue was spawned by the controversy as to whether the parish priest or a layman
should have the custody of the image.
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socio-
religious celebration" every fifth day of April "of the feast day of Señor San Vicente Ferrer, the patron saint
of Valencia".
That resolution designated the members of nine committees who would take charge of the 1976 festivity.
lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting
shed as the barangay's projects. Funds for the two projects would be obtained through the selling of tickets
and cash donations " (Exh A or 6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance with
the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of the
fiesta, would be the caretaker of the image of San Vicente Ferrer and that the image would remain in his
residence for one year and until the election of his successor as chairman of the next feast day.
It was further provided in the resolution that the image would be made available to the Catholic parish
church during the celebration of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general
assembly on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations of the barangay residents and those of
the neighboring places of Valencia. With those funds, the waiting shed was constructed and the wooden
image of San Vicente Ferrer was acquired in Cebu City by the barangay council for four hundred pesos (Exh.
F-l, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay Valencia
so that the devotees could worship the saint during the mass for the fiesta.
A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña refused to return
that image to the barangay council on the pretext that it was the property of the church because church
funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father
Osmeña allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso, apparently
in connection with the disputed image. That incident provoked Veloso to file against Father Osmeña in the
city court of Ormoc City a charge for grave oral defamation.
Father Osmeña retaliated by filing administrative complaints against Veloso with the city mayor's office and
the Department of Local Government and Community Development on the grounds of immorality, grave
abuse of authority, acts unbecoming a public official and ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father
Osmeña did not accede to the request of Cabatingan to have custody of the image and "maliciously
ignored" the council's Resolution No. 6, the council enacted on May 12, 1976 Resolution No. 10,
authorizing the hiring of a lawyer to file a replevin case against Father Osmeña for the recovery of the
image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12, appointing Veloso as
its representative in the replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmeña and Bishop Cipriano Urgel
(Exh. F). After the barangay council had posted a cash bond of eight hundred pesos, Father Osmeña turned
over the image to the council (p. 10, Rollo). ln his answer to the complaint for replevin, he assailed the
constitutionality of the said resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic
laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members (excluding
two members) a complaint in the Court of First Instance at Ormoc City, praying for the annulment of the
said resolutions (Civil Case No. 1680-0).
The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners appealed
under Republic Act No. 5440. The petitioners contend that the barangay council was not duly constituted
because lsidoro M. Mañago, Jr., the chairman of the kabataang barangay, was not allowed to participate in
its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A). Presidential
Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed that all barrios should
be known as barangays and adopted the Revised Barrio Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated. They are quasi-municipal
corporations endowed with such powers" as are provided by law "for the performance of particular
government functions, to be exercised by and through their respective barrio governments in conformity
with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at least six months, eighteen
years of age or over and Filipino citizens duly registered in the list kept by the barrio secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec. 7,
Ibid). Section 3 of Presidential Decree No. 684, which took effect on April 15, 1975, provides that "the
barangay youth chairman shall be an ex-officio member of the barangay council", having the same powers
and functions as a barangay councilman.
In this case, Mañago, the barangay youth chairman, was notified of the sessions of the barangay council to
be held on March 23 and 26, 1976 but he was not able to attend those sessions because he was working
with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).
Mañago's absence from the sessions of the barangay council did not render the said resolutions void. There
was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the constitutional provisions that
"no law shall be made respecting an establishment of religion" and that "no public money or property shall
ever be appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit, or support of
any priest, preacher, minister, or 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 institution, or government
orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly
establish any religion, nor abridge religious liberty, nor appropriate public money or property for the
benefit of any sect, priest or clergyman. The image was purchased with private funds, not with tax money.
The construction of a waiting shed is entirely a secular matter.
Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic
religion by using the funds raised by solicitations and donations for the purchase of the patron saint's
wooden image and making the image available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact that counsel advanced that
argument in behalf of the petitioner, Father Osmeña the parish priest.
The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with
religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was the
mass. Consequently, the image of the patron saint had to be placed in the church when the mass was
celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then
any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his
image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained
tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden image in order to forestall any
suspicion that it is favoring the Catholic church. A more practical reason for that arrangement would be
that the image, if placed in a layman's custody, could easily be made available to any family desiring to
borrow the image in connection with prayers and novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore that the
said resolutions favored the Catholic church. On the other hand, petitioners Dagar and Edullantes swore
that the resolutions prejudiced the Catholics because they could see the image in the church only once a
year or during the fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of religion annd the use of
public money to favor any sect or church are not involved at all in this case even remotely or indirectly. lt is
not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties had
been more diplomatic and tactful and if Father Osmeña had taken the trouble of causing contributions to
be solicited from his own parishioners for the purchase of another image of San Vicente Ferrer to be
installed in his church.
There can be no question that the image in question belongs to the barangay council. Father Osmeña claim
that it belongs to his church is wrong. The barangay council, as owner of the image, has the right to
determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic church. that action would not
violate the Constitution because the image was acquired with private funds and is its private property.
The council has the right to take measures to recover possession of the image by enacting Resolutions Nos.
10 and 12.
Not every governmental activity which involves the expenditure of public funds and which has some
religious tint is violative of the constitutional provisions regarding separation of church and state, freedom
of worship and banning the use of public money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty thousand
pesos for the cost of plates and the printing of postage stamps with new designs. Under the law, the
Director of Posts, with the approval of the Department Head and the President of the Philippines, issued in
1936 postage stamps to commemorate the celebration in Manila of the 33rd International Eucharistic
Congress sponsored by the Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the stamps
showed a map of the Philippines and nothing about the Catholic Church. No religious purpose was
intended.
Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to enjoin
the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event of a religious character,
was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307, where a
religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the purpose of raising
funds to meet the expenses for the annual fiesta in honor of the Most Holy Sacrament and the Virgin Lady
of Guadalupe, was held accountable for the funds which it held as trustee. 0
Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the
lower court's judgment dismissing their amended petition is affirmed. No costs.
SO ORDERED.
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands
before the Court invoking her religious freedom and her Jehovah God in a bid to save her family – united
without the benefit of legal marriage - and livelihood. The State, on the other hand, seeks to wield its
power to regulate her behavior and protect its interest in marriage and family and the integrity of the
courts where respondent is an employee. How the Court will tilt the scales of justice in the case at bar will
decide not only the fate of respondent Escritor but of other believers coming to Court bearing grievances
on their free exercise of religion. This case comes to us from our remand to the Office of the Court
Administrator on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F.
Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a man not her husband, and
having borne a child within this live-in arrangement. Estrada believes that Escritor is committing an
immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed
therein as it might appear that the court condones her act.2 Consequently, respondent was charged with
committing "disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her
husband having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when her husband was still alive but living with another
woman. She also admitted that she and Quilapio have a son.5 But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their religious beliefs and has the approval of her
congregation.6 In fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of
Pledging Faithfulness."7
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned
by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and
binding within the congregation all over the world except in countries where divorce is allowed. As laid out
by the tenets of their faith, the Jehovah’s congregation requires that at the time the declarations are
executed, the couple cannot secure the civil authorities’ approval of the marital relationship because of
legal impediments. Only couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a matter of practice, the
marital status of the declarants and their respective spouses’ commission of adultery are investigated
before the declarations are executed.8 Escritor and Quilapio’s declarations were executed in the usual and
approved form prescribed by the Jehovah’s Witnesses,9 approved by elders of the congregation where the
declarations were executed,10 and recorded in the Watch Tower Central Office.11
Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted,
the validity of the declarations ceases, and the couple should legalize their union. In Escritor’s case,
although she was widowed in 1998, thereby lifting the legal impediment to marry on her part, her mate
was still not capacitated to remarry. Thus, their declarations remained valid.12 In sum, therefore, insofar as
the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor
and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful and immoral conduct for which she should be held
administratively liable,13 the Court had to determine the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of
the religion clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving
religious freedom (1) benevolent neutrality or accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the religion clauses in our Constitution; and (2) in deciding
respondent’s plea of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which must be
applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue
of whether respondent was to be held administratively liable for there was need to give the State the
opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim of the
respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded the complaint
to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;
(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and
practice; and
(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s
religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been
ruled upon prior to the remand, and constitute "the law of the case" insofar as they resolved the issues of
which framework and test are to be applied in this case, and no motion for its reconsideration having been
filed.16 The only task that the Court is left to do is to determine whether the evidence adduced by the
State proves its more compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the religious
clauses of the Constitution, made more than two years ago, is misplaced to say the least. Since neither the
complainant, respondent nor the government has filed a motion for reconsideration assailing this ruling,
the same has attained finality and constitutes the law of the case. Any attempt to reopen this final ruling
constitutes a crass contravention of elementary rules of procedure. Worse, insofar as it would overturn the
parties’ right to rely upon our interpretation which has long attained finality, it also runs counter to
substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice
Carpio’s belated attempts to disturb settled issues, and that he had timely presented his arguments, the
results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion
clauses, because "one cannot understand, much less intelligently criticize the approaches of the courts and
the political branches to religious freedom in the recent past in the United States without a deep
appreciation of the roots of these controversies in the ancient and medieval world and in the American
experience."17 We delved into the conception of religion from primitive times, when it started out as the
state
itself, when the authority and power of the state were ascribed to God.18 Then, religion developed on its
own and became superior to the state,19 its subordinate,20 and even becoming an engine of state
policy.21
We ascertained two salient features in the review of religious history: First, with minor exceptions, the
history of church-state relationships was characterized by persecution, oppression, hatred, bloodshed, and
war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and
mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable
service. This was the context in which the unique experiment of the principle of religious freedom and
separation of church and state saw its birth in American constitutional democracy and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not translated in the First
Amendment. That experiment had been launched four years earlier, when the founders of the republic
carefully withheld from the new national government any power to deal with religion. As James Madison
said, the national government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it. 23
The omission of an express guaranty of religious freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The restriction had to be made explicit with the adoption of
the religion clauses in the First Amendment as they are worded to this day. Thus, the First Amendment did
not take away or abridge any power of the national government; its intent was to make express the
absence of power.24 It commands, in two parts (with the first part usually referred to as the Establishment
Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
25
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory
purposes. They have a single goal—to promote freedom of individual religious beliefs and practices. In
simplest terms, the Free Exercise Clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion
as an engine to promote state interests, to the principle of non-establishment to allow the free exercise of
religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses’ interpretation and construction in the United States, not
because we are bound by their interpretation, but because the U.S. religion clauses are the precursors to
the Philippine religion clauses, although we have significantly departed from the U.S. interpretation as will
be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with
inconsistencies whether within a Court decision or across decisions. For while there is widespread
agreement regarding the value of the First Amendment religion clauses, there is an equally broad
disagreement as to what these clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion
clauses. First is the standard of separation, which may take the form of either (a) strict separation or (b) the
tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of
governmental neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of church-state separation with a
rigid reading of the principle. On the other hand, the second standard, the benevolent neutrality or
accommodation, is buttressed by the view that the wall of separation is meant to protect the church from
the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the
church, and the state’s hostility towards religion allows no interaction between the two. According to this
Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs to be erected.
Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on believers.29 Only the complete
separation of religion from politics would eliminate the formal influence of religious institutions and
provide for a free choice among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion.31 For example, less than
twenty-four hours after Congress adopted the First Amendment’s prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer.32 Thus, strict separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to.33
The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in Everson v. Board of Education,34 where the Court declared
that Jefferson’s "wall of separation" encapsulated the meaning of the First Amendment. However, unlike
the strict separationists, the strict neutrality view believes that the "wall of separation" does not require
the state to be their adversary. Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to handicap religions than it is to
favor them."35 The strict neutrality approach is not hostile to religion, but it is strict in holding that religion
may not be used as a basis for classification for purposes of governmental action, whether the action
confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of
government action. It does not permit, much less require, accommodation of secular programs to religious
belief.36
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment
Clause, it could lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out
by Justice Goldberg in his concurring opinion in Abington School District v. Schempp,37 strict neutrality
could lead to "a brooding and pervasive devotion to the secular and a passive, or even active, hostility to
the religious" which is prohibited by the Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause.
The Framers, whatever specific applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the free exercise of religion but not,
say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict
neutrality, is that while the Jeffersonian wall of separation "captures the spirit of the American ideal of
church-state separation," in real life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are growing and expanding their
spheres of involvement and activity, resulting in the intersection of government and religion at many
points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that
is meant to protect the state from the church, the wall is meant to protect the church from the state.41
This doctrine was expressed in Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no
concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the
state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could
not be required to pay even property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the
Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom
oaths- these and all other references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to
the supplication with which the Court opens each session: "God save the United States and this Honorable
Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to
worship as one chooses. . . When the state encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then
respects the religious nature of our people and accommodates the public service to their spiritual needs.
To hold that it may not would be to find in the Constitution a requirement that the government show a
callous indifference to religious groups. . . But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its weight against efforts to widen their
effective scope of religious influence. 43
Benevolent neutrality recognizes that religion plays an important role in the public life of the United States
as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of "In God We Trust" on American currency; the recognition of
America as "one nation under God" in the official pledge of allegiance to the flag; the Supreme Court’s
time-honored practice of opening oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination, to lead representatives in prayer. These practices clearly show the
preference for one theological viewpoint—the existence of and potential for intervention by a god—over
the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the
building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S.
Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the
legislature in daily prayers,45 or requiring employers to pay workers compensation when the resulting
inconsistency between work and Sabbath leads to discharge;46 for government to give money to
religiously-affiliated organizations to teach adolescents about proper sexual behavior;47 or to provide
religious school pupils with books;48 or bus rides to religious schools;49 or with cash to pay for state-
mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid or burden religious exercise. Though the government
action is not religiously motivated, these laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government’s favored form of religion, but
to allow individuals and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion.
As Justice Brennan explained, the "government [may] take religion into account…to exempt, when possible,
from generally applicable governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."51 In the ideal world, the legislature would recognize the religions and their
practices and would consider them, when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened may turn to the courts for
protection.52
Thus, 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.53 Most of the free exercise claims brought to the U.S. Court are for exemption,
not invalidation of the facially neutral law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the
case of Sherbert v. Verner,55 which ruled that state regulation that indirectly restrains or punishes religious
belief or conduct must be subjected to strict scrutiny under the Free Exercise Clause.56 According to
Sherbert, when a law of general application infringes religious exercise, albeit incidentally, the state
interest sought to be promoted must be so paramount and compelling as to override the free exercise
claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her
employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied.
She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial
of benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by
religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellant’s constitutional challenge, it must be either because her
disqualification as a beneficiary represents no infringement by the State of her constitutional right of free
exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a
"compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.
. . ."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement to the religious right and a colorable state interest.
"(I)n this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.’"58 The Court found that there was no such compelling state
interest to override Sherbert’s religious liberty. It added that even if the state could show that Sherbert’s
exemption would pose serious detrimental effects to the unemployment compensation fund and
scheduling of work, it was incumbent upon the state to show that no alternative means of regulations
would address such detrimental effects without infringing religious liberty. The state, however, did not
discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert’s benefits would force her to choose between receiving
benefits and following her religion. This choice placed "the same kind of burden upon the free exercise of
religion as would a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert
firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general
laws conflict with scruples of conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state must justify the burden by demonstrating that the law
embodies a compelling interest, that no less restrictive alternative exists, and that a religious exemption
would impair the state’s ability to effectuate its compelling interest. As in other instances of state action
affecting fundamental rights, negative impacts on those rights demand the highest level of judicial scrutiny.
After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious exemptions from
facially-neutral laws of general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in
order, notwithstanding that the law of general application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of Amish parents for violating Wisconsin compulsory school-
attendance laws. The Court, in effect, granted exemption from a neutral, criminal statute that punished
religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim
that such attendance interferes with the practice of a legitimate religious belief, it must appear either that
the State does not deny the free exercise of religious belief by its requirement, or that there is a state
interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.
Long before there was general acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been zealously protected, sometimes even
at the expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest
order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection
of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power to promote the health, safety,
and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree
that religiously grounded conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and
thus beyond the power of the State to control, even under regulations of general applicability. . . .This case,
therefore, does not become easier because respondents were convicted for their "actions" in refusing to
send their children to the public high school; in this context belief and action cannot be neatly confined in
logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were
subject to heightened scrutiny or compelling interest test if government substantially burdened the
exercise of religion; (b) heightened scrutiny or compelling interest test governed cases where the burden
was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases where the
burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government benefit;63 and
(c) the Court could carve out accommodations or exemptions from a facially neutral law of general
application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond
speech, press, or worship was included in the shelter of freedom of religion. Neither Sherbert’s refusal to
work on the Sabbath nor the Amish parents’ refusal to let their children attend ninth and tenth grades can
be classified as conduct protected by the other clauses of the First Amendment. Second, indirect
impositions on religious conduct, such as the denial of twenty-six weeks of unemployment insurance
benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder,
were prohibited. Third, as the language in the two cases indicate, the protection granted was extensive.
Only extremely strong governmental interests justified impingement on religious conduct, as the absolute
language of the test of the Free Exercise Clause suggests. 64
Fourth, the strong language was backed by a requirement that the government provide proof of the
important interest at stake and of the dangers to that interest presented by the religious conduct at issue.
Fifth, in determining the injury to the government’s interest, a court was required to focus on the effect
that exempting religious claimants from the regulation would have, rather than on the value of the
regulation in general. Thus, injury to governmental interest had to be measured at the margin: assuming
the law still applied to all others, what would be the effect of exempting the religious claimant in this case
and other similarly situated religious claimants in the future? Together, the fourth and fifth elements
required that facts, rather than speculation, had to be presented concerning how the government’s
interest would be harmed by excepting religious conduct from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a
discipline to prevent manipulation in the balancing of interests. The fourth and the fifth elements
prevented the likelihood of exaggeration of the weight on the governmental interest side of the balance, by
not allowing speculation about the effects of a decision adverse to those interests nor accepting that those
interests would be defined at a higher level of generality than the constitutional interests on the other side
of the balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection
afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that collided with religious
practices. Although the members of the U.S. Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free exercise of religion.67 Most
scholars and courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided individuals
some form of heightened scrutiny protection, if not always a compelling interest one.68 The 1990 case of
Employment Division, Oregon Department of Human Resources v. Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a
hallucinogenic substance. Specifically, individuals challenged the state’s determination that their religious
use of peyote, which resulted in their dismissal from employment, was misconduct disqualifying them from
receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said that "[w]e have never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts
that proposition." 71 Scalia thus declared "that the right of free exercise does not relieve an individual of
the obligation to comply with a ‘valid and neutral law of general applicability of the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as
Cantwell, Murdock, Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims
alone. All involved "the Free Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech and of the press, or the right of parents to direct the education of their children." 73
The Court said that Smith was distinguishable because it did not involve such a "hybrid situation," but was a
free exercise claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability
that burden religion. Justice Scalia said that "[p]recisely because ‘we are a cosmopolitan nation made up of
people of almost conceivable religious preference,’ and precisely because we value and protect that
religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the
religious objector, every regulation of conduct that does not protect an interest of the highest order." The
Court said that those seeking religious exemptions from laws should look to the democratic process for
protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling
justification approach were abandoned for evaluating laws burdening religion; neutral laws of general
applicability only have to meet the rational basis test, no matter how much they burden religion. 77
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state
interest test, asserting that "(t)he compelling state interest test effectuates the First Amendment’s
command that religious liberty is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear
and compelling government interest ‘of the highest order.’"78 She said that strict scrutiny is appropriate
for free exercise challenges because "[t]he compelling interest test reflects the First Amendment’s
mandate of preserving religious liberty to the fullest extent possible in a pluralistic society." 79
Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the
protection of minority religions to the political process. She said that, "First Amendment was enacted
precisely to protect the rights of those whose religious practice are not shared by the majority and may be
viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The
dissenting Justices agreed with Justice O’Connor that the majority had mischaracterized precedents, such
as in describing Yoder as a "hybrid" case rather than as one under the free exercise clause. The dissent also
argued that strict scrutiny should be used in evaluating government laws burdening religion. 81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan majority of
Congress noisily denounced the decision.83 Smith has the rather unusual distinction of being one case that
is almost universally despised (and this is not too strong a word) by both the liberals and conservatives.84
Liberals chasten the Court for its hostility to minority faiths which, in light of Smith’s general applicability
rule, will allegedly suffer at the hands of the majority faith whether through outright hostility or neglect.
Conservatives bemoan the decision as an assault on religious belief leaving religion, more than ever,
subject to the caprice of an ever more secular nation that is increasingly hostile to religious belief as an
oppressive and archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence.86 First, the First amendment was intended to
protect minority religions from the tyranny of the religious and political majority. 87 Critics of Smith have
worried about religious minorities, who can suffer disproportionately from laws that enact majoritarian
mores.88 Smith, in effect would allow discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate almost invariably from relatively
politically powerless minority religions and Smith virtually wiped out their judicial recourse for
exemption.91 Second, Smith leaves too much leeway for pervasive welfare-state regulation to burden
religion while satisfying neutrality. After all, laws not aimed at religion can hinder observance just as
effectively as those that target religion.92 Government impairment of religious liberty would most often be
of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory
imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost meaningless.93 Third, the Reynolds-Gobitis-
Smith94 doctrine simply defies common sense. The state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are alternative approaches for the
state to effectively pursue its objective without serious inadvertent impact on religion.95
At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and
limiting the term "religion" in today’s pluralistic society, and (2) the belief that courts have no business
determining the significance of an individual’s religious beliefs. For the Smith Court, these two concerns
appear to lead to the conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free exercise protection
to the political process or to allow a "system in which each conscience is a law unto itself." 96 The Court’s
characterization of its choices have been soundly rejected as false, viz:
If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the
Court has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult
to apply and this should not be applied at all. The Constitution does not give the judiciary the option of
simply refusing to interpret its provisions. The First Amendment dictates that free exercise of "religion"
must be protected. Accordingly, the Constitution compels the Court to struggle with the contours of what
constitutes "religion." There is no constitutional opt-out provision for constitutional words that are difficult
to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large
area of middle ground exists between the Court’s two opposing alternatives for free exercise
jurisprudence. Unfortunately, this middle ground requires the Court to tackle difficult issues such as
defining religion and possibly evaluating the significance of a religious belief against the importance of a
specific law. The Court describes the results of this middle ground where "federal judges will regularly
balance against the importance of general laws the significance of religious practice," and then dismisses it
as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity and significance
rather than acquiesce to the Court’s approach of simply refusing to grant any constitutional significance to
their beliefs at all. If the Court is concerned about requiring lawmakers at times constitutionally to exempt
religious individuals from statutory provisions, its concern is misplaced. It is the lawmakers who have
sought to prevent the Court from dismantling the Free Exercise Clause through such legislation as the
[Religious Freedom Restoration Act of 1993], and in any case, the Court should not be overly concerned
about hurting legislature’s feelings by requiring their laws to conform to constitutional dictates. Perhaps
the Court is concerned about putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge
should be expected to fulfill.97
Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious
beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to
regulate"—an assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has been sharply
criticized even implicitly by its supporters, as blatantly untrue. Scholars who supported Smith frequently did
not do so by opposing the arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision made shocking use
of precedent]—those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two constitutional rights combined—the right of parents
to direct the education of their children and the right of free exercise of religion. Under the Court’s opinion
in Smith, the right of free exercise of religion standing alone would not allow Amish parents to disregard
the compulsory school attendance law, and under the Court’s opinion in Yoder, parents whose objection to
the law was not religious would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined?99 As for Sherbert, the Smith
Court attempted to limit its doctrine as applicable only to denials of unemployment compensation benefits
where the religiously-compelled conduct that leads to job loss is not a violation of criminal law. And yet,
this is precisely why the rejection of Sherbert was so damaging in its effect: the religious person was more
likely to be entitled to constitutional protection when forced to choose between religious conscience and
going to jail than when forced to choose between religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially from the religious community,
and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.101 So much
was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993.102 The RFRA was adopted to negate the Smith test and require strict scrutiny for free
exercise claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws neutral toward
religion."103 The Act declares that its purpose is to restore the compelling interest test as set forth in
Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases where free exercise
of religion is substantially burdened; and to provide a claim of defense to a person whose religious exercise
is substantially burdened by government.104 The RFRA thus sought to overrule Smith and make strict
scrutiny the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled
that Congress is empowered to enact laws "to enforce the amendment," but Congress is not "enforcing"
when it creates new constitutional rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect
for the constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia
wrote:
"Values that are protected against governmental interference through enshrinement in the Bill of Rights
are not thereby banished from the political process. Just as society believes in the negative protection
accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the
dissemination of the printed word, so also a society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial power
to say what the Constitution means, the law offered no definition of Free Exercise, and on its face appeared
to be a procedural measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free Exercise exists in the First
Amendment as a negative on Congress. The power of Congress to act towards the states in matters of
religion arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach.
Moreover, if we consider the history of the incorporation of the religion clauses in the U.S., the decision in
Smith is grossly inconsistent with the importance placed by the framers on religious faith. Smith is
dangerous precedent because it subordinates fundamental rights of religious belief and practice to all
neutral, general legislation. Sherbert recognized the need to protect religious exercise in light of the
massive increase in the size of government, the concerns within its reach, and the number of laws
administered by it. However, Smith abandons the protection of religious exercise at a time when the scope
and reach of government has never been greater. It has been pointed out that Smith creates the legal
framework for persecution: through general, neutral laws, legislatures are now able to force conformity on
religious minorities whose practice irritate or frighten an intolerant majority.109
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating
the Free Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist in the Bill of Rights. Like most protections found in the
Bill of Rights, the religion clauses of the First Amendment are most important to those who cannot prevail
in the political process. The Court in Smith ignores the fact that the protections found in the Bill of Rights
were deemed too important to leave to the political process. Because mainstream religions generally have
been successful in protecting their interests through the political process, it is the non-mainstream religions
that are adversely affected by Smith. In short, the U.S. Supreme Court has made it clear to such religions
that they should not look to the First Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or
legislative, i.e., not required by the Free Exercise Clause but nonetheless permitted by the Establishment
Clause; and (c) those which the religion clauses prohibit.111
Mandatory accommodation results when the Court finds that accommodation is required by the Free
Exercise Clause, i.e, when the Court itself carves out an exemption. This accommodation occurs when all
three conditions of the compelling interest test are met, i.e, a statute or government action has burdened
claimant’s free exercise of religion, and there is no doubt as to the sincerity of the religious belief; the state
has failed to demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive means. In these
cases, the Court finds that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to make exemptions.
Thus, if the state’s objective could be served as well or almost as well by granting an exemption to those
whose religious beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the religious beliefs of the
Amish who objected to enrolling their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York to church properties, but did not rule that the state
was required to provide tax exemptions. The Court declared that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in public schools
and Marsh v. Chambers,115 allowing payment of legislative chaplains from public funds. Parenthetically,
the Court in Smith has ruled that this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that establishment concerns prevail over potential
accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise exemptions are valid.116 An example where
accommodation was prohibited is McCollum v. Board of Education,117 where the Court ruled against
optional religious instruction in the public school premises.118
Given that a free exercise claim could lead to three different results, the question now remains as to how
the Court should determine which action to take. In this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to
carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is religiously neutral and generally applicable on its face
is argued to prevent or burden what someone’s religious faith requires, or alternatively, requires someone
to undertake an act that faith would preclude. In essence, then, free exercise arguments contemplate
religious exemptions from otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the
First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic
society.120 Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs,
the burden shifts to the government to demonstrate that the law or practice is necessary to the
accomplishment of some important (or ‘compelling’) secular objective and that it is the least restrictive
means of achieving that objective. If the plaintiff meets this burden and the government does not, the
plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimant’s
beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or
congruent with those of the claimant’s religious denomination. ‘Only beliefs rooted in religion are
protected by the Free Exercise Clause’; secular beliefs, however sincere and conscientious, do not
suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach has
also further been split by the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view as pronounced in Smith,
however, is that that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude that we have adopted—lock, stock and barrel—the
religion clauses as embodied in the First Amendment, and therefore, the U.S. Court’s interpretation of the
same. Unlike in the U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations, similar exemptions for religion are mandatory
accommodations under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain
provisions on tax exemption of church property,123 salary of religious officers in government
institutions,124 and optional religious instruction.125 Our own preamble also invokes the aid of a divine
being.126 These constitutional provisions are wholly ours and have no counterpart in the U.S. Constitution
or its amendments. They all reveal without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires accommodations in
interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted
that the 1935 Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935
Constitution is a misreading of the ponencia. What the ponencia pointed out was that even as early as
1935, or more than three decades before the U.S. Court could validate the exemption in Walz as a form or
permissible accommodation, we have already incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution,
insofar as religious accommodations are concerned. It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the
Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted
from the First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the
religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark
distinction between the two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One
might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of
U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes
before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each
will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment
as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence should
also follow this approach in light of the Philippine religion clauses’ history. As a result, in a case where the
party claims religious liberty in the face of a general law that inadvertently burdens his religious exercise,
he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be
breached if the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as
a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will
give to all of them full force and effect. From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.129
[citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion
clauses to effectively deny accommodations on the sole basis that the law in question is neutral and of
general application. For even if it were true that "an unbroken line of U.S. Supreme Court decisions" has
never held that "an individual’s religious beliefs [do not] excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court
has allowed exemptions from a law of general application, in effect, interpreting our religion clauses to
cover both mandatory and permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff exemption from a
law of general application based on the Free Exercise Clause. In this case, plaintiff was required by an
ordinance to secure a mayor’s permit and a municipal license as ordinarily required of those engaged in the
business of general merchandise under the city’s ordinances. Plaintiff argued that this amounted to
"religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines." Although the
Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not
engaged in the business or occupation of selling said "merchandise" for profit, it also ruled that applying
the ordinance to plaintiff and requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of dissemination of religious beliefs "as the
power to tax the exercise of a privilege is the power to control or suppress its enjoyment." The decision
states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a clear and present danger of any
substantive evil which the State has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of
Schools.132 The case involved several Jehovah’s Witnesses who were expelled from school for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative
Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned an earlier ruling
denying such exemption,133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is
the existence of a grave and present danger of a character both grave and imminent, of a serious evil to
public safety, public morals, public health or any other legitimate public interest, that the State has a right
(and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the
schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde
Rope Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive
accommodation, where religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt employees from the
application and coverage of a closed shop agreement—mandated in another law—based on religious
objections. A unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result would be
favorable to a religion or sect." Interestingly, the secular purpose of the challenged law which the Court
upheld was the advancement of "the constitutional right to the free exercise of religion."136
Having established that benevolent neutrality-accommodation is the framework by which free exercise
cases must be decided, the next question then turned to the test that should be used in ascertaining the
limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we reviewed our
jurisprudence, and ruled that in cases involving purely conduct based on religious belief, as in the case at
bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on
the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test
but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the "immediate and grave
danger" test as well as the doctrine that a law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona
rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of
American Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is often
used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag which employed the "grave and
immediate danger" test. Victoriano was the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where
the "clear and present danger" and "grave and immediate danger" tests were appropriate as speech has
easily discernible or immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct
has different effects on the state’s interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment
of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a right
with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail between the state’s interest and
religious liberty, reasonableness shall be the guide. The "compelling state interest" serves the purpose of
revering religious liberty while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of
the benevolent neutrality framework and compelling state interest test, states that "[i]t is true that a test
needs to be applied by the Court in determining the validity of a free exercise claim of exemption as made
here by Escritor." This assertion is inconsistent with the position negating the benevolent neutrality or
accommodation approach. If it were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test to determine the validity of a
free exercise claim, as any and all claims for religious exemptions from a law of general application would
fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the separation theory and accommodation theory as opposite
concepts, and then rejecting relevant and instructive American jurisprudence (such as the Smith case) just
because it does not espouse the theory selected." He then asserts that the Smith doctrine cannot be
dismissed because it does not really espouse the strict neutrality approach, but more of permissive
accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a
claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the
Smith doctrine actually espouses the theory of accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or legislative exemptions. It, therefore, cannot be used as a
test in determining the claims of religious exemptions directly under the Free Exercise Clause because
Smith does not recognize such exemption. Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine
would effectively render the Free Exercise protection—a fundamental right under our Constitution—
nugatory because he would deny its status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this
process in detail, by showing the questions which must be answered in each step, viz:
…First, "[H]as the statute or government action created a burden on the free exercise of religion?" The
courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimant’s belief is ascertained to avoid the mere claim of religious beliefs to escape a
mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the objectives at risk if exemption is
given; it must precisely show how and to what extent those objectives will be undermined if exemptions
are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of
the state?" The analysis requires the state to show that the means in which it is achieving its legitimate
state objective is the least intrusive means, i.e., it has chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally, if the Court finds that that
establishment concerns prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation can
carve out an exemption from a law of general application. He posits the view that the law should prevail in
the absence of a legislative exemption, and the Court cannot make the accommodation or exemption.
Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or legislative accommodations, but also
mandatory accommodations. Thus, an exemption from a law of general application is possible, even if
anchored directly on an invocation of the Free Exercise Clause alone, rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive
accommodation based on religious freedom has been granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption
from a general federal law criminalizing polygamy, even if it was proven that the practice constituted a
religious duty under their faith.140 In contradistinction, Philippine law accommodates the same practice
among Moslems, through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as the Code of
Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy "shall
not apply to a person married…under Muslim law." Thus, by legislative action, accommodation is granted
of a Muslim practice which would otherwise violate a valid and general criminal law. Mr. Justice Carpio
recognized this accommodation when, in his dissent in our Decision dated August 4, 2003 and citing Sulu
Islamic Association of Masjid Lambayong v. Malik,141 he stated that a Muslim Judge "is not criminally liable
for bigamy because Shari’a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in
this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty
of religious liberty as embodied in the Free Exercise Clause does not require the grant of exemptions from
generally applicable laws to individuals whose religious practice conflict with those laws," his theory is
infirmed by the showing that the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in the Philippine Constitution, our
legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to
the notion that religion clauses, like the other fundamental liberties found in the Bill or Rights, is a
preferred right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not
applicable when the law in question is a generally applicable criminal law. Stated differently, even if Mr.
Justice Carpio conceded that there is no question that in the Philippine context, accommodations are
made, the question remains as to how far the exemptions will be made and who would make these
exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e., finding
that the Free Exercise Clause required the accommodation, or mandatory accommodations) has already
been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this Court can
make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of general
application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion
clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced
and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially neutral
law would have on religious exercise. Just because the law is criminal in nature, therefore, should not bring
it out of the ambit of the Free Exercise Clause. As stated by Justice O’Connor in her concurring opinion in
Smith, "[t]here is nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as laws aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions
who are likewise protected by the Free Exercise Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which
include ignorance and indifference and overt hostility to the minority. As stated in our Decision, dated
August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or hostility could explain a
refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently
willing to make such exemptions when the need is brought to their attention, but this may not always be
the case when the religious practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless
injury to the religious consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this treatment to religious faiths that
are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be
applied for the first time, as an exemption of such nature, albeit by legislative act, has already been granted
to Moslem polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the
Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty or property,
the Religion Clauses are stated in absolute terms, unqualified by the requirement of "due process,"
"unreasonableness," or "lawful order." Only the right to free speech is comparable in its absolute grant.
Given the unequivocal and unqualified grant couched in the language, the Court cannot simply dismiss a
claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a
general criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question,
adherence to the benevolent neutrality-accommodation approach require that the Court make an
individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach
does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it.
This is an erroneous reading of the framework which the dissent of Mr. Justice Carpio seems to entertain.
Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection. This is precisely the purpose of the test—to
draw the line between mandatory, permissible and forbidden religious exercise. Thus, under the
framework, the Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the
protection afforded by the religion clauses of the Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state interest or
the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the
ideal towards which religious clause jurisprudence should be directed. We here lay down the doctrine that
in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as
discussed above, but more importantly, because our constitutional history and interpretation indubitably
show that benevolent neutrality is the launching pad from which the Court should take off in interpreting
religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty
"not only for a minority, however small- not only for a majority, however large but for each of us" to the
greatest extent possible within flexible constitutional limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be
resolved, upon which remand was necessary, pertained to the final task of subjecting this case to the
careful application of the compelling state interest test, i.e., determining whether respondent is entitled to
exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s
report,146 along with the evidence submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the administrative charge of
"disgraceful and immoral conduct." It is at this point then that we examine the report and documents
submitted by the hearing officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent’s claimed religious belief and practice are beyond serious doubt.147 Thus, having
previously established the preliminary conditions required by the compelling state interest test, i.e., that a
law or government practice inhibits the free exercise of respondent’s religious beliefs, and there being no
doubt as to the sincerity and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or practice justifies a compelling
secular objective and that it is the least restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering
paramount interests" which could limit or override respondent’s fundamental right to religious freedom.
Neither did the government exert any effort to show that the means it seeks to achieve its legitimate state
objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach,
Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s
claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued
and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and
practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement
within the congregation of the Jehovah’s Witnesses, cannot be a source of any legal protection for
respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override
respondent’s claimed religious belief and practice, in order to protect marriage and the family as basic
social institutions. The Solicitor General, quoting the Constitution148 and the Family Code,149 argues that
marriage and the family are so crucial to the stability and peace of the nation that the conjugal
arrangement embraced in the Declaration of Pledging Faithfulness should not be recognized or given
effect, as "it is utterly destructive of the avowed institutions of marriage and the family for it reduces to a
mockery these legally exalted and socially significant institutions which in their purity demand respect and
dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he
asserts that the State has a compelling interest in the preservation of marriage and the family as basic
social institutions, which is ultimately the public policy underlying the criminal sanctions against
concubinage and bigamy. He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal Code." According
to Mr. Justice Carpio, by choosing to turn a blind eye to respondent’s criminal conduct, the majority is in
fact recognizing a practice, custom or agreement that subverts marriage. He argues in a similar fashion as
regards the state’s interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage
and the family, or even in the sound administration of justice. Indeed, the provisions by which respondent’s
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the Revised Penal Code, and even the provisions on marriage
and family in the Civil Code and Family Code, all clearly demonstrate the State’s need to protect these
secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in
our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights — "the
most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend
that the state’s interest is important, because our Constitution itself holds the right to religious freedom
sacred. The State must articulate in specific terms the state interest involved in preventing the exemption,
which must be compelling, for only the gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause
as a source of right by itself.
Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or even
"in the sound administration of justice" that must be weighed against respondent’s claim, but the State’s
narrow interest in refusing to make an exception for the cohabitation which respondent’s faith finds moral.
In other words, the government must do more than assert the objectives at risk if exemption is given; it
must precisely show how and to what extent those objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be
merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that
prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing the concubinage
or bigamy charges against respondent or her partner. The State has never sought to prosecute respondent
nor her partner. The State’s asserted interest thus amounts only to the symbolic preservation of an
unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the exemption would effectively break
up "an otherwise ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of marriage and the
family.
The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that
"the conjugal arrangement of respondent and her live-in partner should not be condoned because
adulterous relationships are constantly frowned upon by society";152 and "that State laws on marriage,
which are moral in nature, take clear precedence over the religious beliefs and practices of any church,
religious sect or denomination on marriage. Verily, religious beliefs and practices should not be permitted
to override laws relating to public policy such as those of marriage."153
The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in
her dissenting opinion to our Decision dated August 4, 2003, which she offers again in toto. These
arguments have already been addressed in our decision dated August 4, 2003.154 In said Decision, we
noted that Mme. Justice Ynares-Santiago’s dissenting opinion dwelt more on the standards of morality,
without categorically holding that religious freedom is not in issue.155 We, therefore, went into a
discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it sanctions.156 Thus,
when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised Penal Code,158 or "morals" in the New Civil
Code,159 or "moral character" in the Constitution,160 the distinction between public and secular morality
on the one hand, and religious morality, on the other, should be kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests;162
(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the
Court makes in the case at bar should be understood only in this realm where it has authority.163
(d) Having distinguished between public and secular morality and religious morality, the more difficult task
is determining which immoral acts under this public and secular morality fall under the phrase "disgraceful
and immoral conduct" for which a government employee may be held administratively liable.164 Only one
conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose
partner is legally married to another which Philippine law and jurisprudence consider both immoral and
illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes
"disgraceful and immoral conduct," the case at bar involves the defense of religious freedom, therefore
none of the cases cited by Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the Jehovah’s Witnesses under
the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some
other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with
conduct prejudicial to the best interest of the service, and we reiterate that the dissent offends due
process as respondent was not given an opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." Indeed, there is no evidence of the alleged prejudice to the
best interest of the service.168
Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which respondent Escritor has been charged to have violated, the
exemption would not apply to Catholics who have secured church annulment of their marriage even
without a final annulment from a civil court. First, unlike Jehovah’s Witnesses, the Catholic faith considers
cohabitation without marriage as immoral. Second, but more important, the Jehovah’s Witnesses have
standards and procedures which must be followed before cohabitation without marriage is given the
blessing of the congregation. This includes an investigative process whereby the elders of the congregation
verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to cohabit
without marriage because once all legal impediments for the couple are lifted, the validity of the
Declaration ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he
raises the issue of equality among religions, we look to the words of the Religion Clauses, which clearly
single out religion for both a benefit and a burden: "No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof…" On its face, the language grants a unique advantage to
religious conduct, protecting it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a provision which puts religion on an
equal footing with other bases for action seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations. The language itself thus
seems to answer whether we have a paradigm of equality or liberty; the language of the Clause is clearly in
the form of a grant of liberty. 169
In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a document, such as the Bill of Rights, designed to
protect the minority from the majority, the question of which perspective is appropriate would seem easy
to answer. Moreover, the text, history, structure and values implicated in the interpretation of the clauses,
all point toward this perspective. Thus, substantive equality—a reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability to use the
government (law) to assist their own religion or burden others—makes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition of minorities). 170
As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room
for accommodation of religious exercises as required by the Free Exercise Clause.171 Thus, in arguing that
respondent should be held administratively liable as the arrangement she had was "illegal per se because,
by universally recognized standards, it is inherently or by its very nature bad, improper, immoral and
contrary to good conscience,"172 the Solicitor General failed to appreciate that benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.173
Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate
that the state has used the least intrusive means possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties.174 Again, the Solicitor General
utterly failed to prove this element of the test. Other than the two documents offered as cited above which
established the sincerity of respondent’s religious belief and the fact that the agreement was an internal
arrangement within respondent’s congregation, no iota of evidence was offered. In fact, the records are
bereft of even a feeble attempt to procure any such evidence to show that the means the state adopted in
pursuing this compelling interest is the least restrictive to respondent’s religious freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s
conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based
on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld
in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the state, and so the
state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the
state that will also protect the freedom. In the absence of a showing that such state interest exists, man
must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
[G.R. No. 144801. March 10, 2005]
DOMINADOR L. TARUC, WILBERTO DACERA, NICANOR GALANIDA, RENERIO CANTA, JERRY CANTA,
CORDENCIO CONSIGNA, SUSANO ALCALA, LEONARDO DIZON, SALVADOR GELSANO and BENITO LAUGO,
petitioners, vs. BISHOP PORFIRIO B. DE LA CRUZ, REV. FR. RUSTOM FLORANO and DELFIN BORDAS,
respondents.
DECISION
CORONA, J.:
This is an appeal under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-
G.R. SP No. 45480 which reversed and set aside the decision of the Regional Trial Court of Surigao City,
Branch 32 in Civil Case No. 4907 and ordered said case dismissed for lack of jurisdiction.
The antecedents show that petitioners were lay members of the Philippine Independent Church (PIC) in
Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish
priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for
the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. It appears from the
records that the family of Fr. Floranos wife belonged to a political party opposed to petitioner Tarucs, thus
the animosity between the two factions with Fr. Florano being identified with his wifes political camp.
Bishop de la Cruz, however, found this too flimsy a reason for transferring Fr. Florano to another parish.
Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when
petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during
the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade
him from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of
Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to
refrain from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised
petitioners to air their complaints before the higher authorities of PIC if they believed they had valid
grievances against him, the parish priest, the laws and canons of the PIC.
Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around
3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant.
On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine
Independent Church for reasons of:
(1) disobedience to duly constituted authority in the Church;
(2) inciting dissension, resulting in division in the Parish of Our Mother of Perpetual Help, Iglesia Filipina
Independiente, Socorro, Surigao del Norte when they celebrated an open Mass at the Plaza on June 19,
1996; and
(3) for threatening to forcibly occupy the Parish Church causing anxiety and fear among the general
membership.[1]
Petitioners appealed to the Obispo Maximo and sought reconsideration of the above decision. In his letter
to Bishop de la Cruz, the Obispo Maximo opined that Fr. Florano should step down voluntarily to avert the
hostility and enmity among the members of the PIC parish in Socorro but stated that:
I do not intervene in your diocesan decision in asking Fr. Florano to vacate Socorro parish.[2]
In the meantime, Bishop de la Cruz was reassigned to the diocese of Odmoczan and was replaced by Bishop
Rhee M. Timbang. Like his predecessor, Bishop Timbang did not find a valid reason for transferring Fr.
Florano to another parish. He issued a circular denying petitioners persistent clamor for the transfer/re-
assignment of Fr. Florano. Petitioners were informed of such denial but they continued to celebrate mass
and hold other religious activities through Fr. Ambong who had been restrained from performing any
priestly functions in the PIC parish of Socorro, Surigao del Norte.
Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with
preliminary injunction against Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32.
They impleaded Fr. Florano and one Delfin T. Bordas on the theory that they conspired with the Bishop to
have petitioners expelled and excommunicated from the PIC. They contended that their expulsion was
illegal because it was done without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction
but it was denied. Their motion for reconsideration was likewise denied so they elevated the case to the
Court of Appeals.
The appellate court reversed and set aside the decision of the court a quo and ordered the dismissal of the
case without prejudice to its being refiled before the proper forum. It held:
We find it unnecessary to deal on the validity of the excommunication/expulsion of the private
respondents (Taruc, et al.), said acts being purely ecclesiastical matters which this Court considers to be
outside the province of the civil courts.
Civil Courts will not interfere in the internal affairs of a religious organization except for the protection of
civil or property rights. Those rights may be the subject of litigation in a civil court, and the courts have
jurisdiction to determine controverted claims to the title, use, or possession of church property. (Ibid.,
p.466)
Obviously, there was no violation of a civil right in the present case.
Ergo, this Court is of the opinion and so holds that the instant case does not involve a violation and/or
protection of a civil or property rights in order for the court a quo to acquire jurisdiction in the instant
case.[3]
Petitioners appealed from the above decision but their petition was denied. Their motion for
reconsideration was likewise denied, hence, this appeal.
The only issue to be resolved in this case is whether or not the courts have jurisdiction to hear a case
involving the expulsion/excommunication of members of a religious institution.
We rule that the courts do not.
Section 5, Article III or the Bill of Rights of the 1987 Constitution specifically provides that:
Sec. 5. No law shall be made respecting an establishment of religion or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
In our jurisdiction, we hold the Church and the State to be separate and distinct from each other. Give to
Ceasar what is Ceasars and to God what is Gods. We have, however, observed as early as 1928 that:
upon the examination of the decisions it will be readily apparent that cases involving questions relative to
ecclesiastical rights have always received the profoundest attention from the courts, not only because of
their inherent interest, but because of the far reaching effects of the decisions in human society.
[However,] courts have learned the lesson of conservatism in dealing with such matters, it having been
found that, in a form of government where the complete separation of civil and ecclesiastical authority is
insisted upon, the civil courts must not allow themselves to intrude unduly in matters of an ecclesiastical
nature.[4] (italics ours)
We agree with the Court of Appeals that the expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of
said institution/organization. It is not for the courts to exercise control over church authorities in the
performance of their discretionary and official functions. Rather, it is for the members of religious
institutions/organizations to conform to just church regulations. In the words of Justice Samuel F. Miller[5]:
all who unite themselves to an ecclesiastical body do so with an implied consent to submit to the Church
government and they are bound to submit to it.
In the leading case of Fonacier v. Court of Appeals,[6] we enunciated the doctrine that in disputes involving
religious institutions or organizations, there is one area which the Court should not touch: doctrinal and
disciplinary differences.[7] Thus,
The amendments of the constitution, restatement of articles of religion and abandonment of faith or
abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical
law, custom and rule of a church and having reference to the power of excluding from the church those
allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the
province of the civil courts. (emphasis ours)
We would, however, like to comment on petitioners claim that they were not heard before they were
expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times
not to commit acts inimical to the best interests of PIC. They were also warned of the consequences of
their actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on
deaf ears and petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity
among the members of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the
chaos and dissension they caused.
WHEREFORE, the petition is herby DENIED for lack of merit.
Costs against petitioners.
SO ORDERED.
G.R. No. 151445 April 11, 2002
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and
HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.
----------------------------------------
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,
vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
DISSENTING OPINION
SEPARATE OPINION
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that
respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due notice
and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against
the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of America
started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1."
These so-called "Balikatan" exercises are the largest combined training operations involving Filipino and
American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty,1 a bilateral defense agreement entered into by the Philippines and the United States in
1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal
agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime,
the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack
of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (V FA) in
1999.
The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism
campaign declared by President George W. Bush in reaction to the tragic events that occurred on
September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into
the twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C.
by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist organization headed by the
infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of dollars
worth of destruction of property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and
prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by
SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-
intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on
the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and
hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a
relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-President
Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the Draft Terms of
Reference (TOR).3 Five days later, he approved the TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be in
consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against
global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures such as those
for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the
Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the
Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX).
AFP and US Unit Commanders will retain command over their respective forces under the overall authority
of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the AFP
during the FTX.
5. The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the
Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month
Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine
efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will
be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field,
commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company
Tactical headquarters where they can observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the operational capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing
shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VF A. The
briefing shall also promote the full cooperation on the part of the RP and US participants for the successful
conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and regulations, in
the use of their resources, equipment and other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City
and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly
developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in
accordance with their respective laws and regulations, and in consultation with community and local
government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States
Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and
Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following arguments:
I promptly and definitely, brushing aside, if we must, technicalities of procedure.' We have since then
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO
PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF
EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A
THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN
CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL
ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS
IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and
Ersando's standing to file suit, the prematurity of the action, as well as the impropriety of availing of
certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first,
they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-
1 " involves the exercise of Congress' taxing or spending powers. Second, their being lawyers does not
invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the
Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view
that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues
raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of
Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that the
writ may only issue on the basis of established facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no question of
constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the V
FA. The Solicitor General asks that we accord due deference to the executive determination that "Balikatan
02-1" is covered by the VFA, considering the President's monopoly in the field of foreign relations and her
role as commander-in-chief of the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a
related case:
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where
we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that 'transcendental importance to the public of these cases demands that they be settled
applied the exception in many other cases. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco
vs. Phil, Amusement and Gaming Corporation, where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty,
under the 1987 Constitution, to determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the department of the government a becoming respect for each
other's act, this Court nevertheless resolves to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At
any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel
may undertake and the duration of their stay has been addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the
Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has
been described as the "core" of the defense relationship between the Philippines and its traditional ally,
the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces
through joint training with its American counterparts; the "Balikatan" is the largest such training exercise
directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the obligations
thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum
in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should
be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the
VFA.7 The V FA provides the "regulatory mechanism" by which "United States military and civilian
personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine
Government." It contains provisions relative to entry and departure of American personnel, driving and
vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and
aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued
relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces in the event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom,
unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United
States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left
undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.8 The sole encumbrance placed on its definition is couched in the
negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity."9 All other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the
tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the
conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty
and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be
used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context. As explained by a writer on the
Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the conference and are
now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a
treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission
accordingly came down firmly in favour of the view that 'the starting point of interpretation is the
elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This
is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated
to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition
on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means
of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general
rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of interpretation divorced
from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
.'activities" arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the building of school houses,
medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under
the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as
opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of
the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and
training in the global effort against terrorism? Differently phrased, may American troops actually engage in
combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I
stipulates that US exercise participants may not engage in combat "except in self-defense." We wryly note
that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-
1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very
doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of
doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing
the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The
indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally
conducted by the United States government, and that the provision on self-defense serves only as
camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby
becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war
on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United
Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be read in the context of the
1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter,
though it nevertheless remains in effect as a valid source of international obligation. The present
Constitution contains key provisions useful in determining the extent to which foreign military troops are
allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 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.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the
paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right
to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it 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."12 Even more pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or
of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of
direct exception. Conflict arises then between the fundamental law and our obligations arising from
international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in
Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land does not by any means
imply the primacy of international law over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are given a standing equal, not
superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors
neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more
traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must
be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions
of its internal law as justification for its failure to perform a treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v.
Hechanova,17
xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it
to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review,
revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may
provide, final judgments and decrees of inferior courts in -( I) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation is in question." In other words, our
Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law,
but, also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war
on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers
under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us
do, we cannot take judicial notice of the events transpiring down south,18 as reported from the saturation
coverage of the media. As a rule, we do not take cognizance of newspaper or electronic reports per se, not
because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be
established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak" in trying to
pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invite
us to speculate on what is really happening in Mindanao, to issue I make factual findings on matters well
beyond our immediate perception, and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On this point, we
must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil
action for certiorari. We have held in too many instances that questions of fact are not entertained in such
a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The
phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of discretion "too patent
and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or
act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason
of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.20
Under the expanded concept of judicial power under the Constitution, courts are charged with the duty "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining,
we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of
error that would otherwise call for correction on our part. In other words, respondents in the case at bar
have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the
filing of a new petition sufficient in form and substance in the proper Regional Trial Court.
SO ORDERED.
[G.R. No. 47800. December 2, 1940.]
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
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 Assembly 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 President 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 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.
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 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. 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
preservation.
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-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
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 Acting 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 resolution aforementioned, in pursuance of the
provisions of Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval
of the Secretary of Public Works and Communications, 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 recommendation made by the Chairman of the National Traffic Commission as aforesaid,
with the modification 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 promulgate 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 questions 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 President, 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 Assembly 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 President 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 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 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, promulgated 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 adoption, 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 difficulty 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 execution of the laws, but also in the promulgation of certain rules
and regulations calculated to promote public interest.
The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to
the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business
or trade and abridge the right to personal liberty and freedom of locomotion. 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 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 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
preservation.
The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins 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 increasing population, the growth of public opinion,
with an increasing desire on the part of the masses and of the government to look after and care for the
interests of the individuals of the state, have brought within the police power 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 constitutional
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 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-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 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."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.
G.R. No. L-2089 October 31, 1949
JUSTA G. GUIDO, petitioner,
vs.
RURAL PROGRESS ADMINISTRATION, c/o FAUSTINO AGUILAR, Manager, Rural Progress Administration,
respondent.
Guillermo B. Guevara for petitioner.
Luis M. Kasilag and Lorenzo B. Vizconde for respondent.
TUASON, J.:
This a petition for prohibition to prevent the Rural Progress Administration and Judge Oscar Castelo of the
Court of First Instance of Rizal from proceeding with the expropriation of the petitioner Justa G. Guido's
land, two adjoining lots, part commercial, with a combined area of 22,655 square meters, situated in
Maypajo, Caloocan, Rizal, just outside the north Manila boundary, on the main street running from this city
to the north. Four grounds are adduced in support of the petition, to wit:
(1) That the respondent RPA (Rural Progress Administration) acted without jurisdiction or corporate power
in filling the expropriation complaint and has no authority to negotiate with the RFC a loan of P100,000 to
be used as part payment of the value of the land.
(2) That the land sought to be expropriated is commercial and therefore excluded within the purview of the
provisions of Act 539.

(3) That majority of the tenants have entered with the petitioner valid contracts for lease, or option to buy
at an agreed price, and expropriation would impair those existing obligation of contract.
(4) That respondent Judge erred in fixing the provisional value of the land at P118,780 only and in ordering
its delivery to the respondent RPA.
We will take up only ground No. 2. Our conclusion on this branch of the case will make superfluous a
decision on the other questions raised.
Sections 1 and 2 of Commonwealth Act No. 539, copied verbatim, are as follows:
SECTION 1. The President of the Philippines is authorized to acquire private lands or any interest therein,
through purchaser or farms for resale at reasonable prices and under such conditions as he may fix to their
bona fide tenants or occupants or to private individuals who will work the lands themselves and who are
qualified to acquire and own lands in the Philippines.
SEC. 2. The President may designated any department, bureau, office, or instrumentality of the National
Government, or he may organize a new agency to carry out the objectives of this Act. For this purpose, the
agency so created or designated shall be considered a public corporation.
The National Assembly approved this enactment on the authority of section 4 of Article XIII of the
Constitution which, copied verbatim, is as follows:
The Congress may authorize, upon payment of just compensation, the expropriation of lands to be
subdivided into small lots and conveyed at cost to individuals.
What lands does this provision have in view? Does it comprehend all lands regardless of their location,
nature and area? The answer is to be found in the explanatory statement of Delegate Miguel Cuaderno,
member of the Constitutional Convention who was the author or sponsor of the above-quoted provision. In
this speech, which was entitled "Large Estates and Trust in Perpetuity" and is transcribed in full in Aruego's
"The Framing of the Philippine Constitution," Mr. Cuaderno said:
There has been an impairment of public tranquility, and to be sure a continuous of it, because of the
existence of these conflicts. In our folklore the oppression and exploitation of the tenants are vividly
referred to; their sufferings at the hand of the landlords are emotionally pictured in our drama; and even in
the native movies and talkies of today, this theme of economic slavery has been touched upon. In official
documents these same conflicts are narrated and exhaustively explained as a threat to social order and
stability.
But we should go to Rizal inspiration and illumination in this problem of this conflicts between landlords
and tenants. The national hero and his family were persecuted because of these same conflicts in Calamba,
and Rizal himself met a martyr's death because of his exposal of the cause of the tenant class, because he
would not close his eyes to oppression and persecution with his own people as victims.lawphi1.nêt
I ask you, gentlemen of the Convention, knowing this as you do and feeling deeply as you must feel a regret
over the immolation of the hero's life, would you not write in the Constitution the provision on large
estates and trust in perpetuity, so that you would be the very instrument of Providence to complete the
labors of Rizal to insure domestic tranquility for the masses of our people?
If we are to be true to our trust, if it is our purpose in drafting our constitution to insure domestic
tranquility and to provide for the well-being of our people, we cannot, we must fail to prohibit the
ownership of large estates, to make it the duty of the government to break up existing large estates, and to
provide for their acquisition by purchase or through expropriation and sale to their occupants, as has been
provided in the Constitutions of Mexico and Jugoslavia.
No amendment was offered and there was no debate. According to Dean Aruego, Mr. Cuaderno's
resolution was readily and totally approved by the Convention. Mr. Cuaderno's speech therefore may be
taken as embodying the intention of the framers of the organic law, and Act No. 539 should be construed
in a manner consonant with that intention. It is to be presumed that the National Assembly did not intend
to go beyond the constitutional scope of its powers.
There are indeed powerful considerations, aside from the intrinsic meaning of section 4 of Article XIII of the
Constitution, for interpreting Act No. 539 in a restrictive sense. Carried to extremes, this Act would be
subversive of the Philippine political and social structure. It would be in derogation of individual rights and
the time-honored constitutional guarantee that no private property of law. The protection against
deprivation of property without due process for public use without just compensation occupies the
forefront positions (paragraph 1 and 2) in the Bill for private use relieves the owner of his property without
due process of law; and the prohibition that "private property should not be taken for public use without
just compensation" (Section 1 [par. 2], Article III, of the Constitution) forbids necessary implication the
appropriation of private property for private uses (29 C.J.S., 819). It has been truly said that the assertion of
the right on the part of the legislature to take the property of and citizen and transfer it to another, even
for a full compensation, when the public interest is not promoted thereby, is claiming a despotic power,
and one inconsistent with very just principle and fundamental maxim of a free government. (29 C.J.S., 820.)
Hand in hand with the announced principle, herein invoked, that "the promotion of social justice to insure
the well-being and economic security of all the people should be the concern of the state," is a declaration,
with which the former should be reconciled, that "the Philippines is a Republican state" created to secure
to the Filipino people "the blessings of independence under a regime of justice, liberty and democracy."
Democracy, as a way of life enshrined in the Constitution, embraces as its necessary components freedom
of conscience, freedom of expression, and freedom in the pursuit of happiness. Along with these freedoms
are included economic freedom and freedom of enterprise within reasonable bounds and under proper
control. In paving the way for the breaking up of existing large estates, trust in perpetuity, feudalism, and
their concomitant evils, the Constitution did not propose to destroy or undermine the property right or to
advocate equal distribution of wealth or to authorize of what is in excess of one's personal needs and the
giving of it to another. Evincing much concern for the protection of property, the Constitution distinctly
recognize the preferred position which real estate has occupied in law for ages. Property is bound up with
every aspects of social life in a democracy as democracy is conceived in the Constitution. The Constitution
owned in reasonable quantities and used legitimately, plays in the stimulation to economic effort and the
formation and growth of a social middle class that is said to be the bulwark of democracy and the backbone
of every progressive and happy country.
The promotion of social justice ordained by the Constitution does not supply paramount basis for
untrammeled expropriation of private land by the Rural Progress Administration or any other government
instrumentality. Social justice does not champion division of property or equality of economic status; what
it and the Constitution do guaranty are equality of opportunity, equality of political rights, equality before
the law, equality between values given and received on the basis of efforts exerted in their production. As
applied to metropolitan centers, especially Manila, in relation to housing problems, it is a command to
devise, among other social measures, ways and means for the elimination of slums, shambles, shacks, and
house that are dilapidated, overcrowded, without ventilation. light and sanitation facilities, and for the
construction in their place of decent dwellings for the poor and the destitute. As will presently be shown,
condemnation of blighted urban areas bears direct relation to public safety health, and/or morals, and is
legal.
In reality, section 4 of Article XIII of the Constitution is in harmony with the Bill of Rights. Without that
provision the right of eminent domain, inherent in the government, may be exercised to acquire large
tracts of land as a means reasonably calculated to solve serious economic and social problem. As Mr.
Aruego says "the primary reason" for Mr. Cuaderno's recommendation was "to remove all doubts as to the
power of the government to expropriation the then existing landed estates to be distributed at costs to the
tenant-dwellers thereof in the event that in the future it would seem such expropriation necessary to the
solution of agrarian problems therein."
In a broad sense, expropriation of large estates, trusts in perpetuity, and land that embraces a whole town,
or a large section of a town or city, bears direct relation to the public welfare. The size of the land
expropriated, the large number of people benefited, and the extent of social and economic reform secured
by the condemnation, clothes the expropriation with public interest and public use. The expropriation in
such cases tends to abolish economic slavery, feudalistic practices, and other evils inimical to community
prosperity and contentment and public peace and order. Although courts are not in agreement as to the
tests to be applied in determining whether the use is public or not, some go far in the direction of a liberal
construction as to hold that public advantage, and to authorize the exercise of the power of eminent
domain to promote such public benefit, etc., especially where the interest involved are considerable
magnitude. (29 C.J.S., 823, 824. See also People of Puerto Rico vs. Eastern Sugar Associates, 156 Fed. [2nd],
316.) In some instances, slumsites have been acquired by condemnation. The highest court of New York
States has ruled that slum clearance and reaction of houses for low-income families were public purposes
for which New York City Housing authorities could exercise the power of condemnation. And this decision
was followed by similar ones in other states. The underlying reasons for these decisions are that the
destruction of congested areas and insanitary dwellings diminishes the potentialities of epidemic, crime
and waste, prevents the spread of crime and diseases to unaffected areas, enhances the physical and moral
value of the surrounding communities, and promotes the safety and welfare of the public in general.
(Murray vs. La Guardia, 52 N.E. [2nd], 884; General Development Coop. vs. City of Detroit, 33 N.W. [2ND],
919; Weizner vs. Stichman, 64 N.Y.S. [2nd], 50.) But it will be noted that in all these case and others of
similar nature extensive areas were involved and numerous people and the general public benefited by the
action taken.
The condemnation of a small property in behalf of 10, 20 or 50 persons and their families does not inure to
the benefit of the public to a degree sufficient to give the use public character. The expropriation
proceedings at bar have been instituted for the economic relief of a few families devoid of any
consideration of public health, public peace and order, or other public advantage. What is proposed to be
done is to take plaintiff's property, which for all we know she acquired by sweat and sacrifice for her and
her family's security, and sell it at cost to a few lessees who refuse to pay the stipulated rent or leave the
premises.
No fixed line of demarcation between what taking is for public use and what is not can be made; each case
has to be judge according to its peculiar circumstances. It suffices to say for the purpose of this decision
that the case under consideration is far wanting in those elements which make for public convenience or
public use. It is patterned upon an ideology far removed from that consecrated in our system of
government and embraced by the majority of the citizens of this country. If upheld, this case would open
the gates to more oppressive expropriations. If this expropriation be constitutional, we see no reason why
a 10-, 15-, or 25-hectare farm land might not be expropriated and subdivided, and sold to those who want
to own a portion of it. To make the analogy closer, we find no reason why the Rural Progress
Administration could not take by condemnation an urban lot containing an area of 1,000 or 2,000 square
meters for subdivision into tiny lots for resale to its occupants or those who want to build thereon.
The petition is granted without special findings as to costs.
Moran, C.J., Feria, Bengzon, Padilla and Montemayor, JJ., concur.
Paras and Reyes, JJ., concur in the result.
G.R. No. L-47178 May 16, 1980
ESTRELLA B. ONDOY, petitioner,
vs.
VIRGILIO IGNACIO, Proprietor M/B LADY ESTRELLITA and/or IMPERIAL FISHING ENTERPRISES and/or THE
SECRETARY OF LABOR and/or THE COMPENSATION APPEALS AND REVIEW STAFF, Department of Labor,
respondents.
Fernardo R. Moreno for petitioner.
Feliciano Tumale for private respondents.
E. V. Espanol for public respondent.
FERNANDO, C.J.:têñ.£îhqwâ£
The undisputed facts argue strongly for the granting of the claim for compensation filed by petitioner, the
mother of one Jose Ondoy, who was drowned while in the employ of private respondent, Virgilio Ignacio.
Whatever be the cause for the failure to do so, it is admitted that there was no controversion. Such
omission, fatal in character, was sought to be minimized by the filing of a motion to dismissed based on the
alleged absence of an employment relationship. What cannot be ignored, however, is that subsequently, in
the hearing of such claim private respondent submitted affidavits executed by the chief engineer and oiler
of the fishing vessel that the deceased a fisherman, was in that ship, undeniably a member of the working
force, but after being invited by friends to a drinking spree, left the vessel, and thereafter was found dead.
The referee summarily ignored the affidavit of the chief-mate of respondent employer to the effect "that
sometime in October, 1968, while Jose Ondoy, my co-worker, was in the actual performance of his work
with said fishing enterprises, he was drowned and died on October 22, 1968. That the deceased died in line
of Duty." 1 The hearing officer or referee dismissed the claim for lack of merit. 2 A motion for
reconsideration was duly filed, but in an order dated August 29, 1977, the then Secretary of Labor, now
Minister Blas F. Ople, denied such motion for reconsideration for lack of merit. 3 Hence this petition for
review.
1. In La Mallorca v. Workmen's Compensation Commission, 4 this Court explicitly held that the
failure to controvert "is fatal to any defense that petitioner could interpose. So we have held in a host of
decisions in compliance with the clear and express language of the Workmen's Compensation Act. Any
Assertion to the contrary is doomed to futility. 5 The opinion noted thirty decisions starting from Bachrach
Motor Co. v. Workmen's Compensation Commission 6 to Northwest Orient Airlines, Inc. v. Workmen's
Compensation Commission. 7 Thereafter, in Regal Auto Works, Inc. v. Workmen's Compensation
Commission, 8 such a doctrine was reaffirmed. It was further noted that nine more decisions had been
rendered by this Court starting from Republic v. Workmen's Compensation Commission 9 to Abong v.
Workmen's Compensation Commission. 10 By the time respondent secretary of Labor denied the motion
for reconsideration, a host of decisions that speaks to the same effect had been promulgated. 11 It clearly,
appears, therefore, that the failure of the referee to grant the award ought to have been remedied and the
motion for reconsideration granted.
2. The deceased in this case met his death because of drowning. In Camotes Shipping Corporation
v. Otadoy, 12 there was not even any direct testimony that the deceased was drowned while in the
performance of his duty. All that could be alleged was that he "was lost at sea while in the employ of
petitioner. 13 Nonetheless, the award for compensation was sustained. Likewise, the ruling in Caltex (Phil.)
Inc. v. Villanueva 14 was cited with approval. Thus: "The fact that the employee was found missing while on
board the petitioner's vessel MV 'Caltex Mindanao' became known to the captain of the vessel on 10
October 1956 but it was only on 6 November 1956 when the petitioner transmitted to the respondent
Compensation WCC For in No. 3 stating that the employee was 'Lost at sea and presumed dead as of
October 10, 1956,' and that it was controverting the respondent's claim. 15 In the present case, there is
evidence of the fact of death due to drowning. That was not controverted. Under the circumstances, the
failure to grant the claim finds no justification in law.
3. It bears repeating that there is evidence, direct and categorical, to the effect that the deceased
was drowned while "in the actual performance of his work" with the shipping enterprise of private
respondent. Even without such evidence, the petitioner could have relied on the presumption of
compensability under the Act once it is shown that the death or disability arose in the course of
employment, with the burden of overthrowing it being cast on the person or entity resisting the claim.
Time and time again this Court has stressed such statutory provision. It suffices to mention cases decided
from January to April of this year. 16 An appraisal of the counter-affidavits submitted by two employees of
private respondent and thereafter beholden to him to the effect that the deceased left the vessel for a
drinking spree certainly cannot meet the standard required to negate the force of the presumption of
compensability.
4. Nor is an affirmance of the finding of the referee adverse to the claim warranted because of
the doctrine that the findings of facts of an administrative agency must be accorded due weight and
consideration. An excerpt from the recent case of Uy v. Workmen's Compensation Commission 17 finds
pertinence: "The claim merits scant consideration for this Court is authorized to inquire into the facts when
the conclusions are not supported by substantial or credible evidence. 18
5. This Court, in recognizing the right of petitioner to the award, merely adheres to the
interpretation uninterruptedly followed by this Court resolving all doubts in favor of the claimant. So it has
been since the first leading case of Francisco v. Conching 19 decided a year after the 1935 Constitution
took effect. What was said in Victorias Milling Co., Inc. v. Workmen's Compensation Commission 20 is not
amiss: "There is need, it seems, even at this late date, for [private respondent] and other employers to be
reminded of the high estate accorded the Workmen's Compensation Act in the constitutional scheme of
social justice and protection to labor. 21 Further: "No other judicial attitude may be expected in the face of
a clearly expressed legislative determination which antedated the constitutionally avowed concern for
social justice and protection to labor. It is easily understandable why the judiciary frowns on resort to
doctrines, which even if deceptively plausible, would result in frustrating such a national policy. 22 Lastly, to
quote from the opinion therein rendered: "To be more specific, the principle of social justice is in this
sphere strengthened and vitalized. A realistic view is that expressed in Agustin v. Workmen's Compensation
Commission: 'As between a laborer, usually poor and unlettered, and the employer, who has resources to
secure able legal advice, the law has reason to demand from the latter stricter compliance. Social justice in
these cases is not equality but protection.' 23
WHEREFORE, the petition for review is granted and petitioner Estrelita B. Ondoy is awarded the sum of,
P6,000.00 as compensation for the death of her son, Jose Ondoy; P300.00 for burial expenses; and P600.00
as attorney's fees. This decision is immediately executory. Costs against private respondent Virgilio Ignacio.
G.R. No. L-47088 July 10, 1981
CONSOLACION DUQUE SALONGA, assisted by her husband WENCESLAO SALONGA, plaintiff-appellant,
vs.
JULITA B. FARRALES, and THE SHERIFF OF OLONGAPO CITY, defendants-appellees.
FERNANDEZ, J.:
This is an appeal certified to this Court by the Court of Appeals 1 from the decision of the Court of First
Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo City, in Civil Case No.
1144-0, entitled "Consolacion Duque Salonga, assisted by her husband, Wenceslao Salonga, Plaintiff, versus
Julita B. Farrales, and The Sheriff of Olongapo City, Defendants," the dispositive part of which reads:
FOR THE REASONS GIVEN, judgment is hereby rendered dismissing plaintiff's complaint, as well as
defendants' counterclaim.
Costs against plaintiff.
SO ORDERED. 2
The records disclose that on January 2, 1973; the appellant, Consolacion Duque Salonga assisted by her
husband, filed a complaint against Julita B. Farrales and the Sheriff of Olongapo City with the Court of First
Instance of Zambales and Olongapo City, Third Judicial District, Branch III, Olongapo City, seeking the
following relief:
WHEREFORE, plaintiff most respectfully prays for the following relief:
a) Ordering defendant Julita Farrales to sell to plaintiff the parcel of land containing an area of
156 Square Meters, more or less, where the house of strong materials of plaintiff exists.
b) Ordering the defendants not to disturb nor interfere in the peaceful possession or occupation
of the land by plaintiff, until a final decision is rendered in this case.
c) Ordering defendants jointly and severally to pay costs; and
d) Granting plaintiff such other relief conformable to law, justice and equity.
Sta. Rita, Olongapo City, December 28, 1972. 3
that on January 9, 1973, plaintiff-appellant, Salonga filed an urgent petition for the issuance of a writ of
preliminary injunction which was duly amended on January 16, 1973, 4 with the following prayer:
WHEREFORE, plaintiff assisted by counsel most respectfully prays the Hon. Court the following relief:
a) That a restraining order be issued pending resolution of the instant petition for issuance of a
Writ of Preliminary Injunction enjoining defendants, particularly the Sheriff of Olongapo City to restrain
from enforcing the Writ of Execution issued in connection with the judgment rendered in Civil Case 650 for
ejectment in the City Court of Olongapo City;
b) That after due hearing of the present amended petition, a Writ of Preliminary Injunction
conditioned upon a reasonable bond be issued enjoining the defendants, particularly, the Sheriff of
Olongapo City, to restrain from enforcing the Writ of Execution issued in connection with the judgment
rendered in Civil Case No. 650 for ejectment in the City Court of Olongapo City, in order to maintain the
status of the parties; in order to prevent the infliction of irreparable injury to plaintiff; and in order that
whatever judgment may be rendered in this case, may not become moot, academic, illusory and
ineffectual, and
c) Granting plaintiff such other relief conformable to law, justice and equity;
that on January 22, 1973, the court a quo issued an order temporarily restraining the carrying out of the
writ of execution issued pursuant to the judgment rendered by the City Court of Olongapo City in Civil Case
No. 650, a suit for ejectment filed by defendant-appellee Farrales against five defendants, among whom
the herein appellant, Consolacion Duque Salonga; 5 that on January 23, 1973, defendant-appellee Farrales
filed a motion to deny the motion for the issuance of a preliminary injunction for being vague and her
answer with counterclaim to the complaint; 6 that an opposition to the amended petition for the issuance
of a writ of preliminary injunction was also filed by the defendant-appellee Farrales on January 25, 1973; 7
that in an order dated January 20, 1973, the court a quo denied the petition for the issuance of a
preliminary injunction and lifted the restraining order issued on January 22, 1973; 8 that plaintiff-appellant
moved for reconsideration of the order denying the motion for issuance of a preliminary injunction on
January 5, 1973; 9 which was also denied by the court a quo on February 21, 1973; 10 that after the trial on
the merits of Civil Case No. 1144-0, the trial court rendered the judgment under review, dismissing
plaintiff's complaint; 11 that on August 13, 1973, the plaintiff, Consolacion Duque Salonga, appealed from
the said decision to the Court of Appeals; 12 that on February 25, 1974, the plaintiff-appellant, Consolacion
Duque Salonga, filed with the Court of Appeals a motion for the issuance of a writ of preliminary injunction
in aid of appeal; 13 that in a resolution dated March 6, 1974, the Court of Appeals denied the said motion
on the ground that "the writ of preliminary injunction prayed for being intended to restrain the
enforcement of the writ of execution issued in Civil Case No. 650 for Ejectment, which is not involved in
this appeal, and there being no justification for the issuance of the writ ... " 14 that on January 13, 1975,
the defendant-appellee Julita B. Farrales filed a motion to dismiss the appeal on the ground that the appeal
has become moot and academic because "the house of the plaintiffs-appellants, subject matter of this
appeal was demolished on October 21, 1974, Annex "A", Sheriff's return and the land where this house was
built was delivered to her and she is now the one in possession ... ; 15 that the plaintiffs-appellants having
failed to comment on the said motion to dismiss when required by the Court of Appeals in its resolution
dated January 16, 1975, 16 the Court of Appeals resolved to submit the motion for decision in a resolution
dated April 17, 1975; 17 and that, likewise, the plaintiffs-appellants having failed to show cause why the
case should not be submitted for decision without the benefit of appellant's reply brief when required to
do so in a Court of Appeals resolution dated May 14, 1975, 18 the Court of Appeals resolved on July 8, 1975
to submit the case for decision without the benefit of appellants' reply brief. 19
In a resolution promulgated on September 15, 1977 the Court of Appeals certified the case to the Supreme
Court because the issue raised in the appeal is purely legal. 20
The plaintiffs-appellants assign the following errors:
I — THE COURT A QUO SERIOUSLY ERRED IN DISMISSING APPELLANTS' COMPLAINT AND IN
DENYING SAID APPELLANTS' RELIEF TO PURCHASE FROM DEFENDANT-APPELLEE JULITA FARRALES THE
PIECE OF LAND IN QUESTION.
II — THE COURT A QUO SERIOUSLY ERRED IN NOT APPLYING TO THE SUIT AT BAR, SECTION 6,
UNDER ARTICLE 11 OF THE NEW CONSTITUTION, WHICH CONTROLS, DELIMITS AND REGULATES PROPERTY
RIGHTS AND PRIVATE GAINS. 21
The main legal question involved in this appeal is whether or not the court a quo erred in dismissing the
complaint for specific performance or the ground that there exists no legally enforceable compromise
agreement upon which the defendant-appellee Farrales can be compelled to sell the piece of land in
question to plaintiff-appellant, Consolacion Duque Salonga.
The facts, as found by the trial court, are:
At the pre-trial conference, the parties stipulated on the following facts -
(1) THAT the personal circumstances of the parties as alleged in the complaint are admitted:
(2) THAT defendant Farrales is the titled owner of a parcel of residential land situated in Sta. Rita,
Olongapo City, Identity of which is not disputed, formerly acquired by her from one Leoncio Dytuco who, in
turn, acquired the same from the Corpuz Family of which only 361 square meters, more or less, not
actually belong to said defendant after portions thereof had been sold to Marciala Zarsadias, Catalino
Pascual and Rosanna Quiocson*; (*Per Deed of Absolute Sale, Exhibit B, the vendee is actually Dionisio
Quiocson);
3) THAT even prior to the acquisition by defendant Farrales (if the land aforesaid, plaintiff was
already in possession as lessee of some 156 square meters thereof, on which she had erected a house,
paying rentals thereon first to the original owners and later to defendant Farrales.
(4) THAT, sometime prior to November, 1968, defendant Farrales filed an ejectment case for non-
payment of rentals against plaintiff and her husband-jointly with other lessees of other portions of the
land, to wit, Jorge Carvajal, Catalino Pascua, Marciala Zarsadias, and the spouses Cesar and Rosalina
Quiocson - Civil Case No. 650 of the Olongapo City Court, Branch 1, in which, on November 20, 1968, and
reiterated on February 4, 1970, a decision was rendered in favor of defendant Farrales and ordering the
therein defendants, including plaintiff herein and her husband, to vacate the portion occupied by them and
to pay rentals in arrears, attorney's fees and costs;
(5) THAT the decision aforesaid was elevated on appeal to the Court of First Instance of Zambales
and Olongapo City, Civil Case No. 581-0 thereof, and, in a Decision dated November 11, 1971 of Branch III
thereof, the same was affirmed with modification only as to the amount of rentals arrears to be paid;
(6) THAT the affirmatory decision of the Court of First Instance aforesaid is now final and executory
the records of the case had been remanded to the Court for execution, and the corresponding writ of
execution had been issued partially satisfied, as far as plaintiff herein is concerned, by the payment of all
rentals in arrears although the removal of said plaintiff's house from the land still remains to be carried out
by defendant Sheriff: and
(7) THAT, even before the rendition of the affirmatory decision of the Court of First Instance, by
common consent amongst themselves defendant sold to Catalino Pascua, Marciala Zarsadias and the
spouses Cesar and Rosalina Quiocson the areas respectly occupied by them; while, with respect to Jorge
Carvajal, in a suit thereafter filed between him and defendant Farrales, a compromise. agreement was
entered into whereunder said defendant undertook to pay for Carvajal's house on her land, so that the
decision aforesaid is now being executed, as far as ejectment is concerned, only against plaintiff herein.
(Pre-Trial Order, May 17, 1973, pp. 2-5) 22
The lower court explained its conclusion thus:
... From the very allegations of the complaint, it is clearly admitted -

5. That plaintiff herein, in view of the sale to three tenants defendants of the portions of land
occupied by each of said three tenant-defendants, by defendant Julita B. Farrales, also offered to purchase
from said defendant the area of One Hundred Fifty-Six (156) Square Meters, more or less, where plaintiff's
house of strong materials exists, but, defendant Julita B. Farrales, despite the fact that said plaintiff's order
to purchase was just, fair and reasonable persistently refused such offer, and instead insisted to execute
the judgment rendered in the ejectment case, before the City Court of Olongapo City, thru the herein
defendant Sheriff of Olongapo City, with the sole and only purpose of causing damage and prejudice to the
plaintiff (Complaint, p. 3 emphasis supplied).
Being a judicial admission, the foregoing binds plaintiff who cannot subsequently take a position
contradictory thereto or inconsistent therewith (Section 2, Rule 129, Rules of Court; McDaniel vs. Apacible,
44 Phil. 248 Cunanan vs. Amparo, 80 Phil., 227). Hence, if plaintiff's offer to purchase was, as aforesaid
persistently refused by defendant, it is obvious that no meeting of the and, took place and, accordingly, no
contract, either to sell or of sale, was ever perfected between them. This is only firmed up even more by
plaintiff's admission on the witness stand that no agreement respecting the purchase and sale of the
disputed land was finalized because, while defendant Farrales purportedly wanted payment in cash,
plaintiff did not have any money for that purpose and neither were negotiations ever had respecting any
possible arrangement for payment in installments. On all fours to the case at bar, therefore, is Velasco et
al., vs. Court of Appeals, et al, G.R. No. L-31018, June 29, 1973, which was a case for specific performance
to compel the therein respondent Magdalena Estate, Inc. to sell a parcel of land to petitioner per an
alleged contract of sale in which the Supreme Court ruled:
It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they
and the respondent still had to meet and agree on how and when the down payment and the installment
payments were to be paid. Such being the situation, it cannot, therefore be said that a definite and firm
sales agreement between the parties had been perfected over the lot in question. Indeed this Court has
already ruled before that a definite agreement on the manner of payment of the purchase price is an
essential element in the formation of a binding and enforceable contract of sale.
Since contracts are enforceable only from the moment of perfection (Articles 1315 and 1475, Civil Code of
the Philippines; Pacific Oxygen and Acetylene Co. vs. Central Bank, G.R. No. L-21881, March 1, 1968; Atkins,
Kroll and Co., Inc. vs. B. Cua Hian Teck G.R. No. L-9817, January 31, 1958), and there is here no perfected
contract at all, it goes without saying that plaintiff has absolutely nothing to enforce against defendant
Farrales, and the fact that defendant Farrales previously sold portions of the land to other lessees similarly
situated as plaintiff herein, does not change the situation because, as to said other lessees, a perfected
contract existed - which is not the case with plaintiff. 23
The trial court found as a fact that no compromise agreement to sell the land in question was ever
perfected between the defendant-appellee as vendor and the plaintiffs-appellants as vendees. 24
It is elementary that consent is an essential element for the existence of a contract, and where it is
wanting, the contract is non-existent. The essence of consent is the conformity of the parties on the terms
of the contract, the acceptance by one of the offer made by the other. The contract to sell is a bilateral
contract. Where there is merely an offer by one party, without the acceptance of the other, there is no
consent. 25
It appears in this case that the offeree, the defendant-appellee Julita B. Farrales not only did not accept,
but rejected the offer of plaintiffs-appellants, spouses Salonga to buy the land in question. There being no
consent there is. therefore, no contract to sell to speak of.
Likewise, it must be borne in mind that the alleged compromise agreement to sell the land in question is
unenforceable under the Statute of Frauds, 26 and thus, renders all the more ineffective the action for
specific performance in the court a quo.
Moreover, as correctly found by the trial court, the plaintiffs-appellants, as lessees, are neither builders in
good faith nor in bad faith. Their rights are governed not by Article 448 but by Art. 1678 of the New Civil
Code. 27 As lessees, they may remove the improvements should the lessor refuse to reimburse them, but
the lessee does not have the right to buy the land. 28
Anent the appellants' claim that since the appellee sold to the three (3) other defendants in the ejectment
suit the three (3) portions of the land in question occupied by them, it follows that "she must also sell that
portion of the land where appellants' residential house was found to appellants" is unmeritorious. The trial
court correctly ruled that the fact that defendant-appellee sold portions of the land to the other lessees
similarly situated as plaintiffs-appellants Salonga does not change the situation because as to said other
lessees, a perfected contract of sale existed which, as previously shown was not the case with the plaintiff.
29
As to the contention that Sec. 6, Article II of the New Constitution is applicable to the case at bar, it must be
remembered that social justice cannot be invoked to trample on the rights of property owners who under
our Constitution and laws are also entitled to protection. The social justice consecrated in our constitution
was not intended to take away rights from a person and give them to another who is not entitled thereto.
Evidently, the plea for social justice cannot nullify the law on obligations and contracts, and is, therefore,
beyond the power of the Court to grant.
There is no showing that the trial court committed any reversible error.
WHEREFORE, the appeal is DISMISSED for lack of merit and the judgment appealed from is hereby
affirmed, without pronouncement as to costs.
SO ORDERED
G.R. No. 96681 December 2, 1991
HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR.
ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN LUPO,
AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.
NARVASA, J.:
The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the Solicitor
General, may be formulated as follows: where the relief sought from the Commission on Human Rights by
a party in a case consists of the review and reversal or modification of a decision or order issued by a court
of justice or government agency or official exercising quasi-judicial functions, may the Commission take
cognizance of the case and grant that relief? Stated otherwise, where a particular subject-matter is placed
by law within the jurisdiction of a court or other government agency or official for purposes of trial and
adjudgment, may the Commission on Human Rights take cognizance of the same subject-matter for the
same purposes of hearing and adjudication?
The facts narrated in the petition are not denied by the respondents and are hence taken as substantially
correct for purposes of ruling on the legal questions posed in the present action. These facts, 1 together
with others involved in related cases recently resolved by this Court 2 or otherwise undisputed on the
record, are hereunder set forth.
1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among
them members of the Manila Public School Teachers Association (MPSTA) and Alliance of Concerned
Teachers (ACT) undertook what they described as "mass concerted actions" to "dramatize and highlight"
their plight resulting from the alleged failure of the public authorities to act upon grievances that had time
and again been brought to the latter's attention. According to them they had decided to undertake said
"mass concerted actions" after the protest rally staged at the DECS premises on September 14, 1990
without disrupting classes as a last call for the government to negotiate the granting of demands had
elicited no response from the Secretary of Education. The "mass actions" consisted in staying away from
their classes, converging at the Liwasang Bonifacio, gathering in peaceable assemblies, etc. Through their
representatives, the teachers participating in the mass actions were served with an order of the Secretary
of Education to return to work in 24 hours or face dismissal, and a memorandum directing the DECS
officials concerned to initiate dismissal proceedings against those who did not comply and to hire their
replacements. Those directives notwithstanding, the mass actions continued into the week, with more
teachers joining in the days that followed. 3
Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein,
teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-political
demands of the MPSTA. 4
2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were
administratively charged on the basis of the principal's report and given five (5) days to answer the charges.
They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and
temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation committee was
consequently formed to hear the charges in accordance with P.D. 807. 5
3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants
Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named
respondents, 6 the latter filed separate answers, opted for a formal investigation, and also moved "for
suspension of the administrative proceedings pending resolution by . . (the Supreme) Court of their
application for issuance of an injunctive writ/temporary restraining order." But when their motion for
suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also
denied their motion for reconsideration orally made at the hearing of November 14, 1990, "the
respondents led by their counsel staged a walkout signifying their intent to boycott the entire
proceedings." 7 The case eventually resulted in a Decision of Secretary Cariño dated December 17, 1990,
rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by
the respondents, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo. 8
4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of
Manila against petitioner (Cariño), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA
went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on the) alleged
violation of the striking teachers" right to due process and peaceable assembly docketed as G.R. No. 95445,
supra. The ACT also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590." 9
Both petitions in this Court were filed in behalf of the teacher associations, a few named individuals, and
"other teacher-members so numerous similarly situated" or "other similarly situated public school teachers
too numerous to be impleaded."
5. In the meantime, too, the respondent teachers submitted sworn statements dated September
27, 1990 to the Commission on Human Rights to complain that while they were participating in peaceful
mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and
consequently for reasons completely unknown to them. 10
6. Their complaints — and those of other teachers also "ordered suspended by the . . . (DECS)," all
numbering forty-two (42) — were docketed as "Striking Teachers CHR Case No. 90775." In connection
therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary
Cariño requiring his attendance therein. 11
On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño) received the
subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding, and
Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the
complainants' counsel (a) explain that his clients had been "denied due process and suspended without
formal notice, and unjustly, since they did not join the mass leave," and (b) expatiate on the grievances
which were "the cause of the mass leave of MPSTA teachers, (and) with which causes they (CHR
complainants) sympathize." 12 The Commission thereafter issued an Order 13 reciting these facts and
making the following disposition:
To be properly apprised of the real facts of the case and be accordingly guided in its investigation and
resolution of the matter, considering that these forty two teachers are now suspended and deprived of
their wages, which they need very badly, Secretary Isidro Cariño, of the Department of Education, Culture
and Sports, Dr. Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon Magsaysay
High School, Manila, are hereby enjoined to appear and enlighten the Commission en banc on October 19,
1990 at 11:00 A.M. and to bring with them any and all documents relevant to the allegations aforestated
herein to assist the Commission in this matter. Otherwise, the Commission will resolve the complaint on
the basis of complainants' evidence.
xxx xxx xxx
7. Through the Office of the Solicitor General, Secretary Cariño sought and was granted leave to
file a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging as
grounds therefor, "that the complaint states no cause of action and that the CHR has no jurisdiction over
the case." 14
8. Pending determination by the Commission of the motion to dismiss, judgments affecting the
"striking teachers" were promulgated in two (2) cases, as aforestated, viz.:
a) The Decision dated December l7, 1990 of Education Secretary Cariño in Case No. DECS 90-082,
decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of
Babaran, Budoy and del Castillo; 15 and
b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590
dismissing the petitions "without prejudice to any appeals, if still timely, that the individual petitioners may
take to the Civil Service Commission on the matters complained of," 16 and inter alia "ruling that it was
prima facie lawful for petitioner Cariño to issue return-to-work orders, file administrative charges against
recalcitrants, preventively suspend them, and issue decision on those charges." 17
9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cariño's motion to
dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10)
days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits with or
without respondents counter affidavit." 18 It held that the "striking teachers" "were denied due process of
law; . . . they should not have been replaced without a chance to reply to the administrative charges;" there
had been a violation of their civil and political rights which the Commission was empowered to investigate;
and while expressing its "utmost respect to the Supreme Court . . . the facts before . . . (it) are different
from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's
joint Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra).
It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf of
petitioner Cariño, has commenced the present action of certiorari and prohibition.
The Commission on Human Rights has made clear its position that it does not feel bound by this Court's
joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to hear and
resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends, in other words, to
try and decide or hear and determine, i.e., exercise jurisdiction over the following general issues:
1) whether or not the striking teachers were denied due process, and just cause exists for the
imposition of administrative disciplinary sanctions on them by their superiors; and
2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers,
(and) with which causes they (CHR complainants) sympathize," justify their mass action or strike.
The Commission evidently intends to itself adjudicate, that is to say, determine with character of finality
and definiteness, the same issues which have been passed upon and decided by the Secretary of
Education, Culture & Sports, subject to appeal to the Civil Service Commission, this Court having in fact, as
aforementioned, declared that the teachers affected may take appeals to the Civil Service Commission on
said matters, if still timely.
The threshold question is whether or not the Commission on Human Rights has the power under the
Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has
jurisdiction or adjudicatory powers over, or the power to try and decide, or hear and determine, certain
specific type of cases, like alleged human rights violations involving civil or political rights.
The Court declares the Commission on Human Rights to have no such power; and that it was not meant by
the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less
take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence
and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. 21 This function, to repeat, the Commission does not have.
22
The proposition is made clear by the constitutional provisions specifying the powers of the Commission on
Human Rights.
The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution,
it succeeded and superseded the Presidential Committee on Human Rights existing at the time of the
effectivity of the Constitution. 24 Its powers and functions are the following 25
(1) Investigate, on its own or on complaint by any party, all forms of human rights violations
involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services
to the underprivileged whose human rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to enhance respect for
the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights and to provide for
compensation to victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty obligations on
human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any investigation
conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the performance of its
functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
As should at once be observed, only the first of the enumerated powers and functions bears any
resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the
Commission the power to investigate all forms of human rights violations involving civil and political rights.
It can exercise that power on its own initiative or on complaint of any person. It may exercise that power
pursuant to such rules of procedure as it may adopt and, in cases of violations of said rules, cite for
contempt in accordance with the Rules of Court. In the course of any investigation conducted by it or under
its authority, it may grant immunity from prosecution to any person whose testimony or whose possession
of documents or other evidence is necessary or convenient to determine the truth. It may also request the
assistance of any department, bureau, office, or agency in the performance of its functions, in the conduct
of its investigation or in extending such remedy as may be required by its findings. 26
But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial
bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense,
these terms have well understood and quite distinct meanings.
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research
on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an official
inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an
investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter or matters." 29
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the
parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as
judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers:
. . . to award or grant judicially in a case of controversy . . . ." 31
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide,
settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of
a judgment." 32
Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and
should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case
No. 90-775, as it has announced it means to do; and it cannot do so even if there be a claim that in the
administrative disciplinary proceedings against the teachers in question, initiated and conducted by the
DECS, their human rights, or civil or political rights had been transgressed. More particularly, the
Commission has no power to "resolve on the merits" the question of (a) whether or not the mass
concerted actions engaged in by the teachers constitute and are prohibited or otherwise restricted by law;
(b) whether or not the act of carrying on and taking part in those actions, and the failure of the teachers to
discontinue those actions, and return to their classes despite the order to this effect by the Secretary of
Education, constitute infractions of relevant rules and regulations warranting administrative disciplinary
sanctions, or are justified by the grievances complained of by them; and (c) what where the particular acts
done by each individual teacher and what sanctions, if any, may properly be imposed for said acts or
omissions.
These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education,
being within the scope of the disciplinary powers granted to him under the Civil Service Law, and also,
within the appellate jurisdiction of the Civil Service Commission.
Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and
resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the
Civil Service Commission; and even this Court itself has had occasion to pass upon said issues. 34
Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in
disciplinary cases are correct and are adequately based on substantial evidence; whether or not the
proceedings themselves are void or defective in not having accorded the respondents due process; and
whether or not the Secretary of Education had in truth committed "human rights violations involving civil
and political rights," are matters which may be passed upon and determined through a motion for
reconsideration addressed to the Secretary Education himself, and in the event of an adverse verdict, may
be reviewed by the Civil Service Commission and eventually the Supreme Court.
The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding
into the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no
business going over the same ground traversed by the latter and making its own judgment on the
questions involved. This would accord success to what may well have been the complaining teachers'
strategy to abort, frustrate or negate the judgment of the Education Secretary in the administrative cases
against them which they anticipated would be adverse to them.
This cannot be done. It will not be permitted to be done.
In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its
investigation should result in conclusions contrary to those reached by Secretary Cariño, it would have no
power anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service
Commission and lastly by this Court. The only thing the Commission can do, if it concludes that Secretary
Cariño was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance;
that would be the Civil Service Commission. 35 It cannot arrogate unto itself the appellate jurisdiction of
the Civil Service Commission.
WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET ASIDE, and the
respondent Commission on Human Rights and the Chairman and Members thereof are prohibited "to hear
and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits."
SO ORDERED.
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world behind secret walls,
they are not separated from the constitutional protection of their basic rights. The constitution is an
overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and
security in the first petition for a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 191 of the
Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the
Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo
and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed
Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2 filed
before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners
(therein respondents) and/or their officers and agents from depriving them of their right to liberty and
other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs
under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. In
our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of National Defense
and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their stead, including
but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2)
enjoined them from causing the arrest of therein petitioners, or otherwise restricting, curtailing, abridging,
or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section
14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October
24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing
Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs.
They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266 of the
Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified return
within the period provided by law and containing the specific matter required by law; (3) they be granted
the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 187 of the
Amparo Rule; and (5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the
Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of
Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the
petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the
summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance
with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein
respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and
unofficial reports of the investigation undertaken in connection with their case, except those already on file
herein;
2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and
Donald Caigas within five days from notice of this decision.
3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment
given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and
(sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007
within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of
Staff or his duly authorized deputy, the latter's authority to be express and made apparent on the face of
the sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several
uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of
their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At
past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their house
and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was
Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He
was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked
on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his
mother to follow him, but three soldiers stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la
Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all members of the
CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and
Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his
house two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed
men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded,
he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned their names.
The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of
age or older. The leader of the team who entered his house and abducted him was "Ganata." He was tall,
thin, curly-haired and a bit old. Another one of his abductors was "George" who was tall, thin, white-
skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him as
his brother Reynaldo's. The van stopped several times until they finally arrived at a house. Raymond and
Reynaldo were each brought to a different room. With the doors of their rooms left open, Raymond saw
several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with the
butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room and it
was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of
the New People's Army. Each time he said he was not, he was hit with the butt of their guns. He was
questioned where his comrades were, how many soldiers he had killed, and how many NPA members he
had helped. Each time he answered none, they hit him.15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up
would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated by
the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed
that the uniform of the high officials was different from those of the other soldiers. One of those officials
was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog
and knew much about his parents and family, and a habeas corpus case filed in connection with the
respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But once
they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17
On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him
up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead
twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood.
When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected
Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they
would come back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made
noise with the chains put on him to see if they were still awake. When none of them came to check on him,
he managed to free his hand from the chains and jumped through the window. He passed through a
helipad and firing range and stopped near a fishpond where he used stones to break his chains. After
walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some
women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was
in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place near the entrance of what
he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They
poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to
see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort
Magsaysay where Reynaldo was detained.20
For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the
wounds were almost healed, the torture resumed, particularly when respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars.
He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including
urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people22 had been
detained in that bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a
small house with two rooms and a kitchen. One room was made into the bartolina. The house was near the
firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also
sometimes detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine
samples and marked them. When asked how they were feeling, they replied that they had a hard time
urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in
white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin and
mefenamic acid. They brought with them the results of respondents' urine test and advised them to drink
plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines
were sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents
were kept in the DTU for about two weeks. While there, he met a soldier named Efren who said that Gen.
Palparan ordered him to monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other
armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents
were detained for one or two weeks in a big two-storey house. Hilario and Efren stayed with them. While
there, Raymond was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo.
They were detained in a big unfinished house inside the compound of "Kapitan" for about three months.
When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a
basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting, seated.
He was about two arms' length away from respondents. He began by asking if respondents felt well
already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that
he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang
lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan
at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon.
Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about
3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them - brought
them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his
parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened
Raymond's parents that if they continued to join human rights rallies, they would never see their children
again. The respondents were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four
"masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he
called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him
to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He said the
medicine was expensive at Php35.00 each, and would make them strong. He also said that they should
prove that they are on the side of the military and warned that they would not be given another chance.31
During his testimony, Raymond identified Gen. Palparan by his picture.32
One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine,
named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of this medicine and
instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The
"Alive" made them sleep each time they took it, and they felt heavy upon waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed
Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya,
Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from
his house, and got acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them. Raymond
was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on him and he
was kept in the barracks.35
The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was
then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them
were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met
Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and
was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped.
She was crying and longing to go home and be with her parents. During the day, her chains were removed
and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives,
Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose
name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th
Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and
Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but
were put back on at night. They were threatened that if they escaped, their families would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be
thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to Camp
Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed
to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with
soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp
of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that
camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers
whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn
and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in
raising livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him
and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-
bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed
because he had a son who was a member of the NPA and he coddled NPA members in his house.40
Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a house where
NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared
him and killed only his son right before Raymond's eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse
near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the
house. Like in Limay, the five detainees were made to do errands and chores. They stayed in Zambales from
May 8 or 9, 2007 until June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were
tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and
experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang
kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo.
Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na
trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo
ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick
up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot
sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen.
Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa
amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama
na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang
trabaho. Sa gabi, hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry
for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would take
care of the food of their family. They were also told that they could farm a small plot adjoining his land and
sell their produce. They were no longer put in chains and were instructed to use the names Rommel (for
Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the highway from where they stayed. They
helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their
earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular
phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him,
but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their
guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards.
Respondents' house did not have electricity. They used a lamp. There was no television, but they had a
radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session. At about 1:00
a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice,
Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking
dogs. They boarded a bus bound for Manila and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related to
matters they witnessed together. Reynaldo added that when they were taken from their house on
February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also
named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted
to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed members
of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched
in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated
from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of
Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while
Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of "Alive" in
different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in
Bulacan, but allowed to remove the blindfold once outside the province. In one of their trips, they passed
by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr.
Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization
handling cases of human rights violations, particularly cases where torture was involved. He was requested
by an NGO to conduct medical examinations on the respondents after their escape. He first asked them
about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne
by respondents were consistent with their account of physical injuries inflicted upon them. The
examination was conducted on August 15, 2007, two days after respondents' escape, and the results
thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed
the Istanbul Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the
October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained,
held incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by petitioners' parents before the Court of Appeals in C.A.-G.R.
SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj.
Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in
his capacity as the Commanding General of the Philippine Army, and members of the Citizens Armed
Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela
Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a return of the writ... On July
4, 2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then
Commanding General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan,
then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay, Palayan
City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal involvement in
the taking of the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario
aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of
the Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo
brothers and ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of
National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware of
the Manalo brothers' alleged abduction. He also claimed that:
7. The Secretary of National Defense does not engage in actual military directional operations, neither does
he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP
operations. The principal responsibility of the Secretary of National Defense is focused in providing
strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the
Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have
directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the Amparo
Rule and to submit report of such compliance... Likewise, in a Memorandum Directive also dated October
31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the
following rules of action in the event the Writ of Amparo is issued by a competent court against any
members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the death or disappearance;
(4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or
practice that may have brought about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death or disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ,
attesting that he received the above directive of therein respondent Secretary of National Defense and that
acting on this directive, he did the following:
3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued
directive to the units of the AFP for the purpose of establishing the circumstances of the alleged
disappearance and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters
and/or direct the immediate conduct of the investigation on the matter by the concerned unit/s,
dispatching Radio Message on November 05, 2007, addressed to the Commanding General, Philippine
Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is attached as
ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned
unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ of
Amparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño pending
before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding
circumstances of the disappearances of the petitioners and to bring those responsible, including any
military personnel if shown to have participated or had complicity in the commission of the complained
acts, to the bar of justice, when warranted by the findings and the competent evidence that may be
gathered in the process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier
filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeño and Merino, which
averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as
detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel
Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National
Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was
reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in
Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño and Manuel
Merino were detained. As per the inquiry, however, no such beachhouse was used as a detention place
found to have been used by armed men to detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S.
Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein petitioners
could not be secured in time for the submission of the Return and would be subsequently submitted.52
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost
Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The
territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a
portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division,
Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of
the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka
Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if any.57 Jimenez testified that this particular investigation was
initiated not by a complaint as was the usual procedure, but because the Commanding General saw news
about the abduction of the Manalo brothers on the television, and he was concerned about what was
happening within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements
and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and
finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other sworn statements taken,
not even of the Manalo family, nor were there other witnesses summoned and investigated61 as according
to Jimenez, the directive to him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known to
Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside Lingad, a
subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single question to the
six persons.65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy
Mendoza had to come back the next day to sign their statements as the printing of their statements was
interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of
their statements indicated that they were signed on May 29, 2006.66 When the Sworn Statements were
turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon of
May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of
Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the
report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken
from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by
unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the
victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning
dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that he
was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church
located nearby his residence, together with some neighbor thereat. He claims that on 15 February 2006, he
was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated
him because he was a CAFGU and that they claimed that those who abducted the Manalo brothers are
members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the
abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member
based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo
being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that on
February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his
residence. He claims further that he just came only to know about the incident on other day (15 Feb 06)
when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any
participation about the incident and claimed that they only implicated him because he is a member of the
CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is a
resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers
Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder
brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14
February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned
only about the incident when he arrived home in their place. He claims further that the only reason why
they implicated him was due to the fact that his mother has filed a criminal charge against their brother
Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they
implicated him in support of their brother. Subject CAA vehemently denied any involvement on the
abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a
resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to
him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the
accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan.
He claims that he was being informed only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only
reason he knows why they implicated him was because there are those people who are angry with their
family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando
Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father
and he was living witness to that incident. Subject civilian vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based
at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him
being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their
brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14
February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That
he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only
about the incident when rumors reached him by his barrio mates. He claims that his implication is merely
fabricated because of his relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well
the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty
(20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose
elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one of the
accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their
place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo
when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims
further that he is truly innocent of the allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that remains loyal to his service to the
government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to
the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February
2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged
involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged
in this investigation.
Though there are previous grudges between each families (sic) in the past to quote: the killing of the father
of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony
of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would
not also mean, however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village from any
intervention by the leftist group, hence inside their village, they were fully aware of the activities of
Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges of abduction committed by
the above named respondents has not been established in this investigation. Hence, it lacks merit to indict
them for any administrative punishment and/or criminal liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2)
civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND
CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED
AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN
PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES
OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE
TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO
ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let
us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted
from a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances
sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to provide a broad and fact-
based perspective on the issue of extrajudicial killings and enforced disappearances,"71 hence
"representatives from all sides of the political and social spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out ways to resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal
killing and enforced disappearances."73 It was an exercise for the first time of the Court's expanded power
to promulgate rules to protect our people's constitutional rights, which made its maiden appearance in the
1987 Constitution in response to the Filipino experience of the martial law regime.74 As the Amparo Rule
was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its
coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings"
are "killings committed without due process of law, i.e., without legal safeguards or judicial
proceedings."75 On the other hand, "enforced disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de
Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of
the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel
Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan,79 which granted judges
the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those
rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the
Legislative and Executive powers of the federal or state governments, limiting themselves to granting
protection in the specific case in litigation, making no general declaration concerning the statute or
regulation that motivated the violation.80
Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing, the
judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the
official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to
the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived
from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in
Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but
prevents them from using this power to make law for the entire nation.82
The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of the
Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's
legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84
What began as a protection against acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality
of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial
decision; (4) Amparo administrativo for the judicial review of administrative actions; and (5) Amparo
agrario for the protection of peasants' rights derived from the agrarian reform process.85
In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect
against human rights abuses especially committed in countries under military juntas. In general, these
countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights.86 Other countries like Colombia, Chile, Germany and Spain, however, have chosen
to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of
the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section
1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "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." The Clause accords a similar general protection to
human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo
libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds
its roots in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction
or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,90
these remedies may not be adequate to address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a petition for a writ of Amparo through
summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo
Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced
disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the
commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators
as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the
preventive and curative roles is to deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the respondents of
their right to liberty and other basic rights on August 23, 2007,93 prior to the promulgation of the Amparo
Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII,
Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule
came into effect on October 24, 2007, they moved to have their petition treated as an Amparo petition as
it would be more effective and suitable to the circumstances of the Manalo brothers' enforced
disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the
incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of
action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by
substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall
grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.95
After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The
abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond
Manalo in a clear and convincing manner. His account is dotted with countless candid details of
respondents' harrowing experience and tenacious will to escape, captured through his different senses and
etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita
kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila
ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan
ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's
affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein
respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men
who barged into his house through the rear door were military men based on their attire of fatigue pants
and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz
and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting
team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by
the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division,
Philippine Army, and their CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either
members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who
turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial.
The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could
delve only into the participation of military personnel, but even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the
petitioners' captivity at the hands of men in uniform assigned to his command. In fact, he or any other
officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in
person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be
doing. Gen. Palparan's direct and personal role in the abduction might not have been shown but his
knowledge of the dire situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman;
Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention.
Hilario's involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw
Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners
were brought away from their houses on February 14, 2006. Raymond also attested that Hilario
participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario
fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San
Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D,
rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three
months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan.
Hilario and Efren also brought the petitioners one early morning to the house of the petitioners' parents,
where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons
should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was
also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand
in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the
petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and
Caigas, among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do,
for, indeed, the evidence of their participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated
by other independent and credible pieces of evidence.102 Raymond's affidavit and testimony were
corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared
by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on
respondents,103 also corroborate respondents' accounts of the torture they endured while in detention.
Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown
in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104 firms up
respondents' story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was
abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped
and tortured in early November 1989. The Commission's findings of fact were mostly based on the
consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the route they took when she was being
driven out of the military installation where she was detained.107 She was also examined by a medical
doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her
cheek coincided with her account of cigarette burning and torture she suffered while in detention.108
With the secret nature of an enforced disappearance and the torture perpetrated on the victim during
detention, it logically holds that much of the information and evidence of the ordeal will come from the
victims themselves, and the veracity of their account will depend on their credibility and candidness in their
written and/or oral statements. Their statements can be corroborated by other evidence such as physical
evidence left by the torture they suffered or landmarks they can identify in the places where they were
detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel
that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as
they have escaped from captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not "free in every sense of the word"109 as
their "movements continue to be restricted for fear that people they have named in their Judicial Affidavits
and testified against (in the case of Raymond) are still at large and have not been held accountable in any
way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position
to threaten respondents' rights to life, liberty and security."110 (emphasis supplied) Respondents claim
that they are under threat of being once again abducted, kept captive or even killed, which constitute a
direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point out that this right is "often associated
with liberty;" it is also seen as an "expansion of rights based on the prohibition against torture and cruel
and unusual punishment." Conceding that there is no right to security expressly mentioned in Article III of
the 1987 Constitution, they submit that their rights "to be kept free from torture and from incommunicado
detention and solitary detention places112 fall under the general coverage of the right to security of
person under the writ of Amparo." They submit that the Court ought to give an expansive recognition of
the right to security of person in view of the State Policy under Article II of the 1987 Constitution which
enunciates that, "The State values the dignity of every human person and guarantees full respect for
human rights." Finally, to justify a liberal interpretation of the right to security of person, respondents cite
the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if there
is no undue restraint by the State on the exercise of that liberty"114 such as a requirement to "report
under unreasonable restrictions that amounted to a deprivation of liberty"115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty,
and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed been violated as respondents
assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of
the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge...
At the core of this guarantee is the immunity of one's person, including the extensions of his/her person -
houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over
a person's home and possessions, but more importantly, protects the privacy and sanctity of the person
himself.117 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX,
Quezon City, viz: 118
The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent
violations of private security in person and property and unlawful invasion of the security of the home by
officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation
when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to
privacy is an essential condition to the dignity and happiness and to the peace and security of every
individual, whether it be of home or of persons and correspondence. (Tañada and Carreon, Political Law of
the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against
unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's soul than the
serenity of his privacy and the assurance of his personal security. Any interference allowable can only be
for the best causes and reasons.119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon
which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of
the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his
person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the
assurance that the government he established and consented to, will protect the security of his person and
property. The ideal of security in life and property... pervades the whole history of man. It touches every
aspect of man's existence."122 In a broad sense, the right to security of person "emanates in a person's
legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes
the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a
deprivation of life but also of those things which are necessary to the enjoyment of life according to the
nature, temperament, and lawful desires of the individual."123
A closer look at the right to security of person would yield various permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal
Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom
of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the
common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an
aspirational principle, but essentially an individual international human right.124 It is the "right to security
of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and
Political Rights (ICCPR) also provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights
to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a
cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people
react differently. The degree of fear can vary from one person to another with the variation of the
prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the
Amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat."
Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo
Rule is a form of violation of the right to security mentioned in the earlier part of the provision.127
Second, the right to security of person is a guarantee of bodily and psychological integrity or security.
Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be
searched or invaded without a search warrant.128 Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search or invasion of the body. It may
constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a
crime against persons because they are an affront to the bodily integrity or security of a person.129
Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the
free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an
invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise
of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and
psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be
used against him (any person under investigation for the commission of an offense). Secret detention
places, solitary, incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the
commission of an offense. Victims of enforced disappearances who are not even under such investigation
should all the more be protected from these degradations.
An overture to an interpretation of the right to security of person as a right against torture was made by
the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the
claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison,
thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights
provides, viz: "Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases
supplied) Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman
or degrading treatment or punishment." Although the application failed on the facts as the alleged ill-
treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic authorities at the time when they
could reasonably have been expected to take measures in order to ensure his security and to investigate
the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the procedural obligation under
Art.3 to conduct an effective investigation into his allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that
the protection of the bodily integrity of women may also be related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms under general international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of
person.132
Third, the right to security of person is a guarantee of protection of one's rights by the government. In the
context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under
Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat
and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of
person in this third sense is a corollary of the policy that the State "guarantees full respect for human
rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor of
order and security, the Constitutional guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to these rights especially when they are
under threat. Protection includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained
to be ineffective. An investigation must have an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the truth by the government.135
This third sense of the right to security of person as a guarantee of government protection has been
interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article 9137
of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to security of person can exist independently of the right
to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher
at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect
of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph
one could lead to the view that the right to security arises only in the context of arrest and detention. The
travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt
with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to
the right to life, the right to liberty and the right to security of the person. These elements have been dealt
with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of
security of person is to be found in article 9, there is no evidence that it was intended to narrow the
concept of the right to security only to situations of formal deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a
matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because
that he or she is not arrested or otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a
State party to ignore threats to the personal security of non-detained persons within its jurisdiction would
render totally ineffective the guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed, and restricted in his movements following his
release from detention. In a catena of cases, the ruling of the Committee was of a similar import:
Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and persecution of opponents
of the ruling party in that state; Tshishimbi v. Zaire,142 involving the abduction of the complainant's
husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the
complainant's partner and the harassment he (complainant) suffered because of his investigation of the
murder; and Chongwe v. Zambia,144 involving an assassination attempt on the chairman of an opposition
alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as
prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford
protection of the right to liberty.145 The ECHR interpreted the "right to security of person" under Article
5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v.
Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not been seen
since. The family's requests for information and investigation regarding his whereabouts proved futile. The
claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the substantive and
procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely
to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent
on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an arguable claim that a person has been taken into custody
and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we now determine
whether there is a continuing violation of respondents' right to security.
First, the violation of the right to security as freedom from threat to respondents' life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their families, including
them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he was
caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who
wanted to see him before he was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It
should be stressed that they are now free from captivity not because they were released by virtue of a
lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their
ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents'
captors even told them that they were still deciding whether they should be executed. Respondent
Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.148
The possibility of respondents being executed stared them in the eye while they were in detention. With
their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and
implicated specific officers in the military not only in their own abduction and torture, but also in those of
other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and Manuel Merino,
among others.
Understandably, since their escape, respondents have been under concealment and protection by private
citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are
forced to limit their movements or activities.149 Precisely because respondents are being shielded from
the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such
as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the
circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion
that there is an apparent threat that they will again be abducted, tortured, and this time, even executed.
These constitute threats to their liberty, security, and life, actionable through a petition for a writ of
Amparo.
Next, the violation of the right to security as protection by the government. Apart from the failure of
military elements to provide protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an effective investigation of respondents'
abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben
Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely
relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in
the investigation for the first time. He was present at the investigation when his subordinate Lingad was
taking the sworn statements, but he did not propound a single question to ascertain the veracity of their
statements or their credibility. He did not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated
October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should
adopt rules of action in the event the writ of Amparo is issued by a competent court against any members
of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and
preservation of relevant evidence; identification of witnesses and securing statements from them;
determination of the cause, manner, location and time of death or disappearance; identification and
apprehension of the person or persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of respondent Secretary of National Defense and
that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of
the respondents, and undertook to provide results of the investigations to respondents.151 To this day,
however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on
October 31, 2007, respondents have not been furnished the results of the investigation which they now
seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation
of respondents' right to security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on the
part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken
in connection with their case, except those already in file with the court.
Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts,
and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo
brothers, to include a list of medical personnel (military and civilian) who attended to them from February
14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the
issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1)
the application must be under oath or affirmation; (2) the search warrant must particularly describe the
place to be searched and the things to be seized; (3) there exists probable cause with one specific offense;
and (4) the probable cause must be personally determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be
produced are only mentioned generally by name, with no other supporting details. They also argue that the
relevancy of the documents to be produced must be apparent, but this is not true in the present case as
the involvement of petitioners in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be
confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.
This Constitutional provision is a protection of the people from the unreasonable intrusion of the
government, not a protection of the government from the demand of the people such as respondents.
Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an action is pending may (a)
order any party to produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27,
issued a subpoena duces tecum for the production and inspection of among others, the books and papers
of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground
that it violated the search and seizure clause. The Court struck down the argument and held that the
subpoena pertained to a civil procedure that "cannot be identified or confused with unreasonable searches
prohibited by the Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of
medical personnel, is irrelevant, improper, immaterial, and unnecessary in the resolution of the petition for
a writ of Amparo. They add that it will unnecessarily compromise and jeopardize the exercise of official
functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of
personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and
Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and
detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction.
Such disclosure would also help ensure that these military officers can be served with notices and court
processes in relation to any investigation and action for violation of the respondents' rights. The list of
medical personnel is also relevant in securing information to create the medical history of respondents and
make appropriate medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out
from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives
voice to preys of silent guns and prisoners behind secret walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated
December 26, 2007 is affirmed. "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."
SO ORDERED.
"Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall
Meyer v. Nebraska, 262 U.S. 390 (1923) have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued
by the county superintendent of the county in which the child resides."
Meyer v. State of Nebraska
"Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor
No. 325 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 exceeding thirty days for each
Argued February 23, 1923 offense."

Decided June 4, 1923 "Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval."

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 successfully
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.]:
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 permitting
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 prevents them, without
reason, from having their children taught foreign languages in school. That argument 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 necessary. 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. Without 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 conscience, 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 Jersey, 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 without
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 education
suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by
compulsory laws.
Practically, education of the young is only possible in schools conducted by especially qualified persons 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 Amendment.
The challenged statute forbids the teaching in school of any subject except in English; also the teaching 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 modern 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 children
reared in this State." It is also affirmed that the foreign born population is very large, that certain
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.
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 conflict 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 supports.
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 SUTHERLAND,
in the next case, at p. 262 U. S. 412, infra.]
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, requires 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 Fourteenth 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 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 November
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 district 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
interdependent 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, contemplate 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 corporation'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 hundred,
and the annual fees received for each student amount to some eight hundred dollars. The elementary
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 useful only for school purposes. The
business and incident good will are very valuable. In order to conduct its affairs, long time contracts must
be made for supplies, equipment, teachers and pupils. Appellants, 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 conduct 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 deprive 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 premature.
No question is raised concerning the power of the State reasonably to regulate all schools, to inspect,
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 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 appellees'
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 primary 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 instruction from public
teachers only. The child is not the mere creature of the State; those who nurture 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. Northwestern 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 exercising 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 ourselves.
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. Kentucky, 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 possibility 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 recognized 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 sixteen 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 district, 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 required 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, however, 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 extend 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 determine 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."
"This Act shall take effect and be and remain in force from and after the first day of September, 1926."
G.R. No. 89572 December 21, 1989
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL
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 Science 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 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 practice 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 regulation of this type: the improvement of the professional and technical
quality of the graduates of medical 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 medical studies and eventually for medical practice. The need to maintain, and the difficulties
of maintaining, 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 educational
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 initially 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 particular class, require
the interference of the State, and (b) the means employed are reasonably necessary 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 ultimately 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, 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 requires 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. L-47841 March 21, 1978
FRANCISCO VIRTOUSO, JR., petitioner,
vs.
MUNICIPAL JUDGE OF MARIVELES, BATAAN, and CHIEF OF POLICE OF MARIVELES, BATAAN, respondents.
RESOLUTION
FERNANDO, J.:
Petitioner Francisco Virtouso, Jr., who filed an application for the writ of habeas corpus on February 23,
1978, premised his plea for liberty primarily on the ground that the pre examination which led to the
issuance of a warrant of arrest against him was a useless formality as respondent Municipal Judge of
Mariveles, Bataan, 1 failed to meet the strict standard required by the Constitution to ascertain whether
there was a probable cause. 2 He likewise alleged that aside from the constitutional infirmity that tainted
the procedure followed in the preliminary examination, the bail imposed was clearly excessive. 3 It was in
the amount of Pl6,000.00, the alleged robbery of a TV set being imputed to petitioner. As prayed for, the
Court issued a writ of habeas corpus, returnable to it on Wednesday, March 15, 1978. Respondent Judge,
in his return filed on March 8, 1978, justified the issuance of the warrant of arrest, alleging that there was
no impropriety in the way the preliminary examination was conducted. As to the excessive character of the
bail, he asserted that while it was fixed in accordance with the Revised Bail Bond Guide issued by the
Executive Judge of Bataan in 1977, he nevertheless reduced the amount to P 8,000.00.
Petitioner's counsel and respondent Municipal Judge orally argued the matter on March 15, 1978. In the
course of intensive questioning by the members of this Court, especially Justices Barredo, Aquino and
Santos, it was ascertained that petitioner is a seventeen-year old minor entitled to the protection and
benefits of the Child and Youth Welfare Code. 4 a youthful offender being defined therein as "one who is
over nine years but under eighteen years of age at the time of the commission of the offense." 5 As such,
he could be provisionally released on recognizance in the discretion of a court. 6 According accordingly,
after the hearing, the Court issued the following resolution: "Acting on the verbal petition of counsel for
petitioner Francisco Virtouso, Jr., the Court Resolved pursuant to section 191 of Presidential Decree No.
603, petitioner being a 17-year old minor, to [order] the release of the petitioner on the recognizance of his
parents Francisco Virtouso, Sr. and Manuela Virtouso and his counsel, Atty. Guillermo B. Bandonil, who, in
open court, agreed to act in such capacity, without prejudice to further proceedings in a pending case
against petitioner being taken in accordance with law." 7 This Court should, whenever appropriate, give
vitality and force to the Youth and Welfare Code, which is an implementation of this specific constitutional
mandate: "The State recognizes the vital role of the youth in nation-building and shall promote their
physical, intellectual, and social well-being." 8
Thus was the petition resolved, without the need of passing upon the issue of whether or not the
procedure by respondent Judge in ascertaining the existence of probable cause was constitutionally
deficient. Nonetheless, it must ever be kept in mind by occupants of the bench that they should always be
on the alert lest by sloth or indifference or due to the economic or social standing of the alleged offended
party, as was intimated in this petition, the rights of an accused, instead of being honored, are disregarded.
There is much more importance attached to the immunities of an individual during a period of martial law,
which in itself is a creature of the Constitution as a mode of coping with grave emergency situations. It is
equally pertinent to state that there should be fealty to the constitutional ban against excessive bail being
required. There is relevance to this excerpt from De la Camara v. Enage: 9
Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is
excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the
right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee
were found in the fundamental law. It is not to be lost sight of that that United States Constitution limits
itself to a prohibition against excessive bail. As construed in the latest American decision, 'the sole
permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at
a higher figure than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth
Amendment. 10
WHEREFORE, the petition is granted in accordance with the terms of the Resolution of this Court of March
15, 1978 as set forth above.
G.R. No. 118978 May 23, 1997
PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and GRACE DE GUZMAN, respondents.
REGALADO, J.:
Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph and Telephone
Company (hereafter, PT & T) invokes the alleged concealment of civil status and defalcation of company
funds as grounds to terminate the services of an employee. That employee, herein private respondent
Grace de Guzman, contrarily argues that what really motivated PT & T to terminate her services was her
having contracted marriage during her employment, which is prohibited by petitioner in its company
policies. She thus claims that she was discriminated against in gross violation of law, such a proscription by
an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a "Supernumerary Project
Worker," for a fixed period from November 21, 1990 until April 20, 1991 vice one C.F. Tenorio who went on
maternity leave.1 Under the Reliever Agreement which she signed with petitioner company, her
employment was to be immediately terminated upon expiration of the agreed period. Thereafter, from
June 10, 1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's services as
reliever were again engaged by petitioner, this time in replacement of one Erlinda F. Dizon who went on
leave during both periods.2 After August 8, 1991, and pursuant to their Reliever Agreement, her services
were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner company as a
probationary employee, the probationary period to cover 150 days. In the job application form that was
furnished her to be filled up for the purpose, she indicated in the portion for civil status therein that she
was single although she had contracted marriage a few months earlier, that is, on May 26, 1991.3
It now appears that private respondent had made the same representation in the two successive reliever
agreements which she signed on June 10, 1991 and July 8, 1991. When petitioner supposedly learned
about the same later, its branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a
memorandum dated January 15, 1992 requiring her to explain the discrepancy. In that memorandum, she
was reminded about the company's policy of not accepting married women for employment.4
In her reply letter dated January 17, 1992, private respondent stated that she was not aware of PT&T's
policy regarding married women at the time, and that all along she had not deliberately hidden her true
civil status.5 Petitioner nonetheless remained unconvinced by her explanations. Private respondent was
dismissed from the company effective January 29, 1992,6 which she readily contested by initiating a
complaint for illegal dismissal, coupled with a claim for non-payment of cost of living allowances (COLA),
before the Regional Arbitration Branch of the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private respondent volunteered the
information, and this was incorporated in the stipulation of facts between the parties, that she had failed
to remit the amount of P2,380.75 of her collections. She then executed a promissory note for that amount
in favor of petitioner7. All of these took place in a formal proceeding and with the agreement of the parties
and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision declaring that private
respondent, who had already gained the status of a regular employee, was illegally dismissed by petitioner.
Her reinstatement, plus payment of the corresponding back wages and COLA, was correspondingly
ordered, the labor arbiter being of the firmly expressed view that the ground relied upDecember 2, 1991on
by petitioner in dismissing private respondent was clearly insufficient, and that it was apparent that she
had been discriminated against on account of her having contracted marriage in violation of company
rules.
On appeal to the National Labor Relations Commission (NLRC), said public respondent upheld the labor
arbiter and, in its decision dated April 29, 1994, it ruled that private respondent had indeed been the
subject of an unjust and unlawful discrimination by her employer, PT & T. However, the decision of the
labor arbiter was modified with the qualification that Grace de Guzman deserved to be suspended for
three months in view of the dishonest nature of her acts which should not be condoned. In all other
respects, the NLRC affirmed the decision of the labor arbiter, including the order for the reinstatement of
private respondent in her employment with PT & T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by respondent NLRC in its
resolution of November 9, 1994, hence this special civil action assailing the aforestated decisions of the
labor arbiter and respondent NLRC, as well as the denial resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be regarded with love and
respect but, through the ages, men have responded to that injunction with indifference, on the hubristic
conceit that women constitute the inferior sex. Nowhere has that prejudice against womankind been so
pervasive as in the field of labor, especially on the matter of equal employment opportunities and
standards. In the Philippine setting, women have traditionally been considered as falling within the
vulnerable groups or types of workers who must be safeguarded with preventive and remedial social
legislation against discriminatory and exploitative practices in hiring, training, benefits, promotion and
retention.
The Constitution, cognizant of the disparity in rights between men and women in almost all phases of social
and political life, provides a gamut of protective provisions. To cite a few of the primordial ones, Section 14,
Article II8 on the Declaration of Principles and State Policies, expressly recognizes the role of women in
nation-building and commands the State to ensure, at all times, the fundamental equality before the law of
women and men. Corollary thereto, Section 3 of Article XIII9 (the progenitor whereof dates back to both
the 1935 and 1973 Constitution) pointedly requires the State to afford full protection to labor and to
promote full employment and equality of employment opportunities for all, including an assurance of
entitlement to tenurial security of all workers. Similarly, Section 14 of Article XIII 10 mandates that the
State shall protect working women through provisions for opportunities that would enable them to reach
their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more frequency in the
years since the Labor Code was enacted on May 1, 1974 as Presidential Decree No. 442, largely due to our
country's commitment as a signatory to the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). 11
Principal among these laws are Republic Act No. 6727 12 which explicitly prohibits discrimination against
women with respect to terms and conditions of employment, promotion, and training opportunities;
Republic Act No. 6955 13 which bans the "mail-order-bride" practice for a fee and the export of female
labor to countries that cannot guarantee protection to the rights of women workers; Republic Act No. 7192
14 also known as the "Women in Development and Nation Building Act," which affords women equal
opportunities with men to act and to enter into contracts, and for appointment, admission, training,
graduation, and commissioning in all military or similar schools of the Armed Forces of the Philippines and
the Philippine National Police; Republic Act No. 7322 15 increasing the maternity benefits granted to
women in the private sector; Republic Act No. 7877 16 which outlaws and punishes sexual harassment in
the workplace and in the education and training environment; and Republic Act No. 8042, 17 or the
"Migrant Workers and Overseas Filipinos Act of 1995," which prescribes as a matter of policy, inter alia, the
deployment of migrant workers, with emphasis on women, only in countries where their rights are secure.
Likewise, it would not be amiss to point out that in the Family Code, 18 women's rights in the field of civil
law have been greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in Articles 130 to 138
thereof. Article 130 involves the right against particular kinds of night work while Article 132 ensures the
right of women to be provided with facilities and standards which the Secretary of Labor may establish to
ensure their health and safety. For purposes of labor and social legislation, a woman working in a nightclub,
cocktail lounge, massage clinic, bar or other similar establishments shall be considered as an employee
under Article 138. Article 135, on the other hand, recognizes a woman's right against discrimination with
respect to terms and conditions of employment on account simply of sex. Finally, and this brings us to the
issue at hand, Article 136 explicitly prohibits discrimination merely by reason of the marriage of a female
employee.
3. Acknowledged as paramount in the due process scheme is the constitutional guarantee of
protection to labor and security of tenure. Thus, an employer is required, as a condition sine qua non prior
to severance of the employment ties of an individual under his employ, to convincingly establish, through
substantial evidence, the existence of a valid and just cause in dispensing with the services of such
employee, one's labor being regarded as constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the company falls within the so-called
management prerogatives, which prescriptions encompass the matter of hiring, supervision of workers,
work assignments, working methods and assignments, as well as regulations on the transfer of employees,
lay-off of workers, and the discipline, dismissal, and recall of employees. 19 As put in a case, an employer is
free to regulate, according to his discretion and best business judgment, all aspects of employment, "from
hiring to firing," except in cases of unlawful discrimination or those which may be provided by law. 20
In the case at bar, petitioner's policy of not accepting or considering as disqualified from work any woman
worker who contracts marriage runs afoul of the test of, and the right against, discrimination, afforded all
women workers by our labor laws and by no less than the Constitution. Contrary to petitioner's assertion
that it dismissed private respondent from employment on account of her dishonesty, the record discloses
clearly that her ties with the company were dissolved principally because of the company's policy that
married women are not qualified for employment in PT & T, and not merely because of her supposed acts
of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by Delia M. Oficial, the
branch supervisor of the company, with the reminder, in the words of the latter, that "you're fully aware
that the company is not accepting married women employee (sic), as it was verbally instructed to you." 21
Again, in the termination notice sent to her by the same branch supervisor, private respondent was made
to understand that her severance from the service was not only by reason of her concealment of her
married status but, over and on top of that, was her violation of the company's policy against marriage
("and even told you that married women employees are not applicable [sic] or accepted in our company.")
22 Parenthetically, this seems to be the curious reason why it was made to appear in the initiatory
pleadings that petitioner was represented in this case only by its said supervisor and not by its highest
ranking officers who would otherwise be solidarily liable with the corporation. 23
Verily, private respondent's act of concealing the true nature of her status from PT & T could not be
properly characterized as willful or in bad faith as she was moved to act the way she did mainly because
she wanted to retain a permanent job in a stable company. In other words, she was practically forced by
that very same illegal company policy into misrepresenting her civil status for fear of being disqualified
from work. While loss of confidence is a just cause for termination of employment, it should not be
simulated. 24 It must rest on an actual breach of duty committed by the employee and not on the
employer's caprices. 25 Furthermore, it should never be used as a subterfuge for causes which are
improper, illegal, or unjustified. 26
In the present controversy, petitioner's expostulations that it dismissed private respondent, not because
the latter got married but because she concealed that fact, does have a hollow ring. Her concealment, so it
is claimed, bespeaks dishonesty hence the consequent loss of confidence in her which justified her
dismissal.
Petitioner would asseverate, therefore, that while it has nothing against marriage, it nonetheless takes
umbrage over the concealment of that fact. This improbable reasoning, with interstitial distinctions,
perturbs the Court since private respondent may well be minded to claim that the imputation of dishonesty
should be the other way around.
Petitioner would have the Court believe that although private respondent defied its policy against its
female employees contracting marriage, what could be an act of insubordination was inconsequential.
What it submits as unforgivable is her concealment of that marriage yet, at the same time, declaring that
marriage as a trivial matter to which it supposedly has no objection. In other words, PT & T says it gives its
blessings to its female employees contracting marriage, despite the maternity leaves and other benefits it
would consequently respond for and which obviously it would have wanted to avoid. If that employee
confesses such fact of marriage, there will be no sanction; but if such employee conceals the same instead
of proceeding to the confessional, she will be dismissed. This line of reasoning does not impress us as
reflecting its true management policy or that we are being regaled with responsible advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of propositions which confuse
through less than candid arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy
against married women, both on the aspects of qualification and retention, which compelled private
respondent to conceal her supervenient marriage. It was, however, that very policy alone which was the
cause of private respondent's secretive conduct now complained of. It is then apropos to recall the familiar
saying that he who is the cause of the cause is the cause of the evil caused.
Finally, petitioner's collateral insistence on the admission of private respondent that she supposedly
misappropriated company funds, as an additional ground to dismiss her from employment, is somewhat
insincere and self-serving. Concededly, private respondent admitted in the course of the proceedings that
she failed to remit some of her collections, but that is an altogether different story. The fact is that she was
dismissed solely because of her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter would thus consider petitioner's submissions on this
supposed dishonesty as a mere afterthought, just to bolster its case for dismissal, is a perceptive conclusion
born of experience in labor cases. For, there was no showing that private respondent deliberately
misappropriated the amount or whether her failure to remit the same was through negligence and, if so,
whether the negligence was in nature simple or grave. In fact, it was merely agreed that private respondent
execute a promissory note to refund the same, which she did, and the matter was deemed settled as a
peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her dismissal. When she
was served her walking papers on January 29, 1992, she was about to complete the probationary period of
150 days as she was contracted as a probationary employee on September 2, 1991. That her dismissal
would be effected just when her probationary period was winding down clearly raises the plausible
conclusion that it was done in order to prevent her from earning security of tenure. 27 On the other hand,
her earlier stints with the company as reliever were undoubtedly those of a regular employee, even if the
same were for fixed periods, as she performed activities which were essential or necessary in the usual
trade and business of PT & T. 28 The primary standard of determining regular employment is the
reasonable connection between the activity performed by the employee in relation to the business or
trade of the employer. 29
As an employee who had therefore gained regular status, and as she had been dismissed without just
cause, she is entitled to reinstatement without loss of seniority rights and other privileges and to full back
wages, inclusive of allowances and other benefits or their monetary equivalent. 30 However, as she had
undeniably committed an act of dishonesty in concealing her status, albeit under the compulsion of an
unlawful imposition of petitioner, the three-month suspension imposed by respondent NLRC must be
upheld to obviate the impression or inference that such act should be condoned. It would be unfair to the
employer if she were to return to its fold without any sanction whatsoever for her act which was not totally
justified. Thus, her entitlement to back wages, which shall be computed from the time her compensation
was withheld up to the time of her actual reinstatement, shall be reduced by deducting therefrom the
amount corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that adopted by
petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. — It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman shall not get married, or to stipulate expressly
or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of
marriage.
This provision had a studied history for its origin can be traced to Section 8 of Presidential Decree No. 148,
31 better known as the "Women and
Child Labor Law," which amended paragraph (c), Section 12 of Republic Act No. 679, 32 entitled "An Act to
Regulate the Employment of Women and Children, to Provide Penalties for Violations Thereof, and for
Other Purposes." The forerunner to Republic Act No. 679, on the other hand, was Act No. 3071 which
became law on March 16, 1923 and which regulated the employment of women and children in shops,
factories, industrial, agricultural, and mercantile establishments and other places of labor in the then
Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et al. vs. Philippine Air
Lines, 33 a decision that emanated from the Office of the President. There, a policy of Philippine Air Lines
requiring that prospective flight attendants must be single and that they will be automatically separated
from the service once they marry was declared void, it being violative of the clear mandate in Article 136 of
the Labor Code with regard to discrimination against married women. Thus:
Of first impression is the incompatibility of the respondent's policy or regulation with the codal provision of
law. Respondent is resolute in its contention that Article 136 of the Labor Code applies only to women
employed in ordinary occupations and that the prohibition against marriage of women engaged in
extraordinary occupations, like flight attendants, is fair and reasonable, considering the pecularities of their
chosen profession.
We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew that the
controverted policy has already met its doom as early as March 13, 1973 when Presidential Decree No.
148, otherwise known as the Women and Child Labor Law, was promulgated. But for the timidity of those
affected or their labor unions in challenging the validity of the policy, the same was able to obtain a
momentary reprieve. A close look at Section 8 of said decree, which amended paragraph (c) of Section 12
of Republic Act No. 679, reveals that it is exactly the same provision reproduced verbatim in Article 136 of
the Labor Code, which was promulgated on May 1, 1974 to take effect six (6) months later, or on
November 1, 1974.
It cannot be gainsaid that, with the reiteration of the same provision in the new Labor Code, all policies and
acts against it are deemed illegal and therefore abrogated. True, Article 132 enjoins the Secretary of Labor
to establish standards that will ensure the safety and health of women employees and in appropriate cases
shall by regulation require employers to determine appropriate minimum standards for termination in
special occupations, such as those of flight attendants, but that is precisely the factor that militates against
the policy of respondent. The standards have not yet been established as set forth in the first paragraph,
nor has the Secretary of Labor issued any regulation affecting flight attendants.
It is logical to presume that, in the absence of said standards or regulations which are as yet to be
established, the policy of respondent against marriage is patently illegal. This finds support in Section 9 of
the New Constitution, which provides:
Sec. 9. The State shall afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race, or creed, and regulate the relations
between workers and employees. The State shall assure the rights of workers to self-organization,
collective bargaining, security of tenure, and just and humane conditions of work . . . .
Moreover, we cannot agree to the respondent's proposition that termination from employment of flight
attendants on account of marriage is a fair and reasonable standard designed for their own health, safety,
protection and welfare, as no basis has been laid therefor. Actually, respondent claims that its concern is
not so much against the continued employment of the flight attendant merely by reason of marriage as
observed by the Secretary of Labor, but rather on the consequence of marriage-pregnancy. Respondent
discussed at length in the instant appeal the supposed ill effects of pregnancy on flight attendants in the
course of their employment. We feel that this needs no further discussion as it had been adequately
explained by the Secretary of Labor in his decision of May 2, 1976.
In a vain attempt to give meaning to its position, respondent went as far as invoking the provisions of
Articles 52 and 216 of the New Civil Code on the preservation of marriage as an inviolable social institution
and the family as a basic social institution, respectively, as bases for its policy of non-marriage. In both
instances, respondent predicates absence of a flight attendant from her home for long periods of time as
contributory to an unhappy married life. This is pure conjecture not based on actual conditions, considering
that, in this modern world, sophisticated technology has narrowed the distance from one place to another.
Moreover, respondent overlooked the fact that married flight attendants can program their lives to adapt
to prevailing circumstances and events.
Article 136 is not intended to apply only to women employed in ordinary occupations, or it should have
categorically expressed so. The sweeping intendment of the law, be it on special or ordinary occupations, is
reflected in the whole text and supported by Article 135 that speaks of non-discrimination on the
employment of women.
The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining & Industrial Corporation
34 considered as void a policy of the same nature. In said case, respondent, in dismissing from the service
the complainant, invoked a policy of the firm to consider female employees in the project it was
undertaking as separated the moment they get married due to lack of facilities for married women.
Respondent further claimed that complainant was employed in the project with an oral understanding that
her services would be terminated when she gets married. Branding the policy of the employer as an
example of "discriminatory chauvinism" tantamount to denying equal employment opportunities to
women simply on account of their sex, the appellate court struck down said employer policy as unlawful in
view of its repugnance to the Civil Code, Presidential Decree No. 148 and the Constitution.
Under American jurisprudence, job requirements which establish employer preference or conditions
relating to the marital status of an employee are categorized as a "sex-plus" discrimination where it is
imposed on one sex and not on the other. Further, the same should be evenly applied and must not inflict
adverse effects on a racial or sexual group which is protected by federal job discrimination laws.
Employment rules that forbid or restrict the employment of married women, but do not apply to married
men, have been held to violate Title VII of the United States Civil Rights Act of 1964, the main federal
statute prohibiting job discrimination against employees and applicants on the basis of, among other
things, sex. 35
Further, it is not relevant that the rule is not directed against all women but just against married women.
And, where the employer discriminates against married women, but not against married men, the variable
is sex and the discrimination is unlawful. 36 Upon the other hand, a requirement that a woman employee
must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the
particular requirements of the job would justify the same, but not on the ground of a general principle,
such as the desirability of spreading work in the workplace. A requirement of that nature would be valid
provided it reflects an inherent quality reasonably necessary for satisfactory job performance. Thus, in one
case, a no-marriage rule applicable to both male and female flight attendants, was regarded as unlawful
since the restriction was not related to the job performance of the flight attendants. 37
5. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor Code on
the right of a woman to be free from any kind of stipulation against marriage in connection with her
employment, but it likewise assaults good morals and public policy, tending as it does to deprive a woman
of the freedom to choose her status, a privilege that by all accounts inheres in the individual as an
intangible and inalienable right. 38 Hence, while it is true that the parties to a contract may establish any
agreements, terms, and conditions that they may deem convenient, the same should not be contrary to
law, morals, good customs, public order, or public policy. 39 Carried to its logical consequences, it may
even be said that petitioner's policy against legitimate marital bonds would encourage illicit or common-
law relations and subvert the sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that the relations between the
parties, that is, of capital and labor, are not merely contractual, impressed as they are with so much public
interest that the same should yield to the common good. 40 It goes on to intone that neither capital nor
labor should visit acts of oppression against the other, nor impair the interest or convenience of the public.
41 In the final reckoning, the danger of just such a policy against marriage followed by petitioner PT & T is
that it strikes at the very essence, ideals and purpose of marriage as an inviolable social institution and,
ultimately, of the family as the foundation of the nation. 42 That it must be effectively interdicted here in
all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land
is not only in order but imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone Company is hereby
DISMISSED for lack of merit, with double costs against petitioner.
SO ORDERED.
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 surnamed 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, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and
JANE CASTRO, JOHANNA DESAMPARADO,
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 FRANCISCO, 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 responsibility" and
"inter-generational justice." Specifically, it touches on the issue of whether the said petitioners 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 domestic, non-stock
and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for
the protection of our environment and natural resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently
ordered upon proper motion by the petitioners.1 The complaint2 was instituted 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 rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine
cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals
that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of
rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity,
with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum —
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural
communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and
(k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and
catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are
so 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
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6
hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property
he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
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
damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the
rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public
policy enunciated in the Philippine Environmental Policy 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
Filipinos 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
efficient 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.)
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches
of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the
complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In the
said order, not only was the defendant's claim — that the complaint states no cause of action against him
and that it raises a political question — sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental
law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge
gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only
represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to 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, petitioners
maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific
legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in
the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of
whether logging should be permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled
unless the holder has been found, after due notice and hearing, to have violated the terms of the
agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of
the complaint is of common and general interest not just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development and utilization be equitably accessible to
the present as well as future generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put
a little differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations to
come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court
notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is
replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself
belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology
in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil
and political rights enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly
stressed by the petitioners — the advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they
are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come — generations which stand to inherit
nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing
the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution — air, water and
noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative
duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental
balance. 12
The said right implies, among many other things, the judicious management and conservation of the
country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well
as the other related provisions of the Constitution concerning the conservation, development and
utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June
1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and
Natural Resources "shall be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may
be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos." Section 3 thereof makes the following
statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and the
use of the country's natural resources, not only for the present generation but for future generations as
well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,15
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.
(2) The State shall likewise recognize and apply a true value system that takes into account social
and environmental cost implications relative to the utilization, development and conservation of our
natural resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's
being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain
and improve conditions under which man and nature can thrive in productive and enjoyable harmony with
each other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity
and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the
said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192
and the Administrative Code of 1987 — to protect and advance the said right.
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; furthermore, the truth of falsity
of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 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 introductory
affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may
thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the
cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-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 settlement
of conflicting rights as conferred as law. The second part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid
for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the
meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according
to the disposition of the judiciary.
In Daza vs. Singson, 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 Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts
clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost
infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . 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 contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview
of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And
it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and
do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest
products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive
when national interests so require. Thus, they are not deemed contracts within the purview of the due
process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director
of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
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 cannot still be
stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their health and
enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life
Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing
or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in
the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged
Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The
petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the
questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 94571 April 22, 1991
TEOFISTO T. GUINGONA, JR. and AQUILINO Q. PIMENTEL, JR., petitioners,
vs.
HON. GUILLERMO CARAGUE, in his capacity as Secretary, Budget & Management, HON. ROZALINA S.
CAJUCOM in her capacity as National Treasurer and COMMISSION ON AUDIT, respondents.
Ramon A. Gonzales for petitioners.
GANCAYCO, J.:
This is a case of first impression whereby petitioners question the constitutionality of the automatic
appropriation for debt service in the 1990 budget.
As alleged in the petition, the facts are as follows:
The 1990 budget consists of P98.4 Billion in automatic appropriation (with P86.8 Billion for debt service)
and P155.3 Billion appropriated under Republic Act No. 6831, otherwise known as the General
Appropriations Act, or a total of P233.5 Billion,1 while the appropriations for the Department of Education,
Culture and Sports amount to P27,017,813,000.00.2
The said automatic appropriation for debt service is authorized by P.D. No. 81, entitled "Amending Certain
Provisions of Republic Act Numbered Four Thousand Eight Hundred Sixty, as Amended (Re: Foreign
Borrowing Act)," by P.D. No. 1177, entitled "Revising the Budget Process in Order to Institutionalize the
Budgetary Innovations of the New Society," and by P.D. No. 1967, entitled "An Act Strenghthening the
Guarantee and Payment Positions of the Republic of the Philippines on Its Contingent Liabilities Arising out
of Relent and Guaranteed Loan by Appropriating Funds For The Purpose.
There can be no question that petitioners as Senators of the Republic of the Philippines may bring this suit
where a constitutional issue is raised.3 Indeed, even a taxpayer has personality to restrain unlawful
expenditure of public funds.
The petitioner seek the declaration of the unconstitutionality of P.D. No. 81, Sections 31 of P.D. 1177, and
P.D. No. 1967. The petition also seeks to restrain the disbursement for debt service under the 1990 budget
pursuant to said decrees.
Respondents contend that the petition involves a pure political question which is the repeal or amendment
of said laws addressed to the judgment, wisdom and patriotism of the legislative body and not this Court.
In Gonzales,5 the main issue was the unconstitutionality of the presidential veto of certain provision
particularly Section 16 of the General Appropriations Act of 1990, R.A. No. 6831. This Court, in disposing of
the issue, stated —
The political question doctrine neither interposes an obstacle to judicial determination of the rival claims.
The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases.
Sec. 1. The judicial power shad 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.
With the Senate maintaining that the President's veto is unconstitutional and that charge being
controverted, there is an actual case or justiciable controversy between the Upper House of Congress and
the executive department that may be taken cognizance of by this Court.
The questions raised in the instant petition are —
I. IS THE APPROPRIATION OF P86 BILLION IN THE P233 BILLION 1990 BUDGET VIOLATIVE OF
SECTION 5, ARTICLE XIV OF THE CONSTITUTION?

II. ARE PD No. 81, PD No. 1177 AND PD No. 1967 STILL OPERATIVE UNDER THE CONSTITUTION?
III. ARE THEY VIOLATIVE OF SECTION 29(l), ARTICLE VI OF THE CONSTITUTION?6
There is thus a justiciable controversy raised in the petition which this Court may properly take cognizance
of On the first issue, the petitioners aver —
According to Sec. 5, Art. XIV of the Constitution:
(5) The State shall assign the highest budgetary priority to education and ensure that teaching will
attract and retain its rightful share of the best available talents through adequate remuneration and other
means of job satisfaction and fulfillment.
The reason behind the said provision is stated, thus:
In explaining his proposed amendment, Mr. Ople stated that all the great and sincere piety professed by
every President and every Congress of the Philippines since the end of World War II for the economic
welfare of the public schoolteachers always ended up in failure and this failure, he stated, had caused mass
defection of the best and brightest teachers to other careers, including menial jobs in overseas
employment and concerted actions by them to project their grievances, mainly over low pay and abject
working conditions.
He pointed to the high expectations generated by the February Revolution, especially keen among public
schoolteachers, which at present exacerbate these long frustrated hopes.
Mr. Ople stated that despite the sincerity of all administrations that tried vainly to respond to the needs of
the teachers, the central problem that always defeated their pious intentions was really the one budgetary
priority in the sense that any proposed increase for public schoolteachers had to be multiplied many times
by the number of government employees in general and their equitable claims to any pay standardization
such that the pay rate of teachers is hopelessly pegged to the rate of government workers in general. This,
he stated, foredoomed the prospect of a significant pay increase for teachers.
Mr. Ople pointed out that the recognition by the Constitution of the highest priority for public
schoolteachers, and by implication, for all teachers, would ensure that the President and Congress would
be strongly urged by a constitutional mandate to grant to them such a level of remuneration and other
incentives that would make teaching competitive again and attractive to the best available talents in the
nation.
Finally, Mr. Ople recalled that before World War II, teaching competed most successfully against all other
career choices for the best and the brightest of the younger generation. It is for this reason, he stated, that
his proposed amendment if approved, would ensure that teaching would be restored to its lost glory as the
career of choice for the most talented and most public-spirited of the younger generation in the sense that
it would become the countervailing measure against the continued decline of teaching and the wholesale
desertion of this noble profession presently taking place. He further stated that this would ensure that the
future and the quality of the population would be asserted as a top priority against many clamorous and
importunate but less important claims of the present. (Journal of the Constitutional Commission, Vol. II, p.
1172)
However, as against this constitutional intention, P86 Billion is appropriated for debt service while only P27
Billion is appropriated for the Department of Education in the 1990 budget. It plain, therefore, that the said
appropriation for debt services is inconsistent with the Constitution, hence, viod (Art. 7, New Civil Code).7
While it is true that under Section 5(5), Article XIV of the Constitution Congress is mandated to "assign the
highest budgetary priority to education" in order to "insure that teaching will attract and retain its rightful
share of the best available talents through adequate remuneration and other means of job satisfaction and
fulfillment," it does not thereby follow that the hands of Congress are so hamstrung as to deprive it the
power to respond to the imperatives of the national interest and for the attainment of other state policies
or objectives.
As aptly observed by respondents, since 1985, the budget for education has tripled to upgrade and
improve the facility of the public school system. The compensation of teachers has been doubled. The
amount of P29,740,611,000.008 set aside for the Department of Education, Culture and Sports under the
General Appropriations Act (R.A. No. 6831), is the highest budgetary allocation among all department
budgets. This is a clear compliance with the aforesaid constitutional mandate according highest priority to
education.
Having faithfully complied therewith, Congress is certainly not without any power, guided only by its good
judgment, to provide an appropriation, that can reasonably service our enormous debt, the greater portion
of which was inherited from the previous administration. It is not only a matter of honor and to protect the
credit standing of the country. More especially, the very survival of our economy is at stake. Thus, if in the
process Congress appropriated an amount for debt service bigger than the share allocated to education,
the Court finds and so holds that said appropriation cannot be thereby assailed as unconstitutional.
Now to the second issue. The petitioners made the following observations:
To begin with, Rep. Act 4860 entitled "AN ACT AUTHORIZING THE PRESIDENT OF THE PHILIPPINES TO
OBTAIN SUCH FOREIGN LOANS AND CREDITS, OR TO INCUR SUCH FOREIGN INDEBTEDNESS, AS MAY BE
NECESSARY TO FINANCE APPROVED ECONOMIC DEVELOPMENT PURPOSES OR PROJECTS, AND TO
GUARANTEE, IN BEHALF OF THE REPUBLIC OF THE PHILIPPINES, FOREIGN LOANS OBTAINED OR BONDS
ISSUED BY CORPORATIONS OWNED OR CONTROLLED BY THE GOVERNMENT OF THE PHILIPPINES FOR
ECONOMIC DEVELOPMENT PURPOSES INCLUDING THOSE INCURRED FOR PURPOSES OF RELENDING TO
THE PRIVATE SECTOR, APPROPRIATING THE NECESSARY FUNDS THEREFOR, AND FOR OTHER PURPOSES,
provides:
Sec. 2. The total amount of loans, credits and indebtedness, excluding interests, which the President
of the Philippines is authorized to incur under this Act shall not exceed one billion United States dollars or
its equivalent in other foreign currencies at the exchange rate prevailing at the time the loans, credits and
indebtedness are incurred: Provided, however, That the total loans, credits and indebtedness incurred
under this Act shall not exceed two hundred fifty million in the fiscal year of the approval of this Act, and
two hundred fifty million every fiscal year thereafter, all in United States dollars or its equivalent in other
currencies.
Sec. 5. It shall be the duty of the President, within thirty days after the opening of every regular
session, to report to the Congress the amount of loans, credits and indebtedness contracted, as well as the
guarantees extended, and the purposes and projects for which the loans, credits and indebtedness were
incurred, and the guarantees extended, as well as such loans which may be reloaned to Filipino owned or
controlled corporations and similar purposes.
Sec. 6. The Congress shall appropriate the necessary amount out of any funds in the National Treasury
not otherwise appropriated, to cover the payment of the principal and interest on such loans, credits or
indebtedness as and when they shall become due.
However, after the declaration of martial law, President Marcos issued PD 81 amending Section 6, thus:
Sec. 7. Section six of the same Act is hereby further amended to read as follows:
Sec. 6. Any provision of law to the contrary notwithstanding, and in order to enable the Republic of
the Philippines to pay the principal, interest, taxes and other normal banking charges on the loans, credits
or indebtedness, or on the bonds, debentures, securities or other evidences of indebtedness sold in
international markets incurred under the authority of this Act, the proceeds of which are deemed
appropriated for the projects, all the revenue realized from the projects financed by such loans, credits or
indebtedness, or on the bonds, debentures, securities or other evidences of indebtedness, shall be turned
over in full, after deducting actual and necessary expenses for the operation and maintenance of said
projects, to the National Treasury by the government office, agency or instrumentality, or government-
owned or controlled corporation concerned, which is hereby appropriated for the purpose as and when
they shall become due. In case the revenue realized is insufficient to cover the principal, interest and other
charges, such portion of the budgetary savings as may be necessary to cover the balance or deficiency shall
be set aside exclusively for the purpose by the government office, agency or instrumentality, or
government-owned or controlled corporation concerned: Provided, That, if there still remains a deficiency,
such amount necessary to cover the payment of the principal and interest on such loans, credit or
indebtedness as and when they shall become due is hereby appropriated out of any funds in the national
treasury not otherwise appropriated: . . .
President Marcos also issued PD 1177, which provides:
Sec. 31. Automatic appropriations. –– All expenditures for (a) personnel retirement premiums,
government service insurance, and other similar fixed expenditures, (b) principal and interest on public
debt, (c) national government guarantees of obligations which are drawn upon, are automatically
appropriated; Provided, that no obligations shall be incurred or payments made from funds thus
automatically appropriated except as issued in the form of regular budgetary allotments.
and PD 1967, which provides:
Sec. 1. There is hereby appropriated, out of any funds in the National Treasury not otherwise
appropriated, such amounts as may be necessary to effect payments on foreign or domestic loans, or
foreign or domestic loans whereon creditors make a call on the direct and indirect guarantee of the
Republic of the Philippines, obtained by:
a. The Republic of the Philippines the proceeds of which were relent to government-owned or
controlled corporations and/or government financial institutions;
b. government-owned or controlled corporations and/or government financial institutions the
proceeds of which were relent to public or private institutions;
c. government-owned or controlled corporations and/or financial institutions and guaranteed by
the Republic of the Philippines;
d. other public or private institutions and guaranteed by government-owned or controlled
corporations and/or government financial institutions.
Sec. 2. All repayments made by borrower institutions on the loans for whose account advances were
made by the National Treasury will revert to the General Fund.
Sec. 3. In the event that any borrower institution is unable to settle the advances made out of the
appropriation provided therein, the Treasurer of the Philippines shall make the proper recommendation to
the Minister of Finance on whether such advances shall be treated as equity or subsidy of the National
Government to the institution concerned, which shall be considered in the budgetary program of the
Government.
In the "Budget of Expenditures and Sources of Financing Fiscal Year 1990," which accompanied her budget
message to Congress, the President of the Philippines, Corazon C. Aquino, stated:
Sources Appropriation
The P233.5 billion budget proposed for fiscal year 1990 will require P132.1 billion of new programmed
appropriations out of a total P155.3 billion in new legislative authorization from Congress. The rest of the
budget, totalling P101.4 billion, will be sourced from existing appropriations: P98.4 billion from Automatic
Appropriations and P3.0 billion from Continuing Appropriations (Fig. 4).
And according to Figure 4, . . ., P86.8 billion out of the P98.4 Billion are programmed for debt service. In
other words, the President had, on her own, determined and set aside the said amount of P98.4 Billion
with the rest of the appropriations of P155.3 Billion to be determined and fixed by Congress, which is now
Rep. Act 6831.9
Petitioners argue that the said automatic appropriations under the aforesaid decrees of then President
Marcos became functus oficio when he was ousted in February, 1986; that upon the expiration of the one-
man legislature in the person of President Marcos, the legislative power was restored to Congress on
February 2, 1987 when the Constitution was ratified by the people; that there is a need for a new
legislation by Congress providing for automatic appropriation, but Congress, up to the present, has not
approved any such law; and thus the said P86.8 Billion automatic appropriation in the 1990 budget is an
administrative act that rests on no law, and thus, it cannot be enforced.
Moreover, petitioners contend that assuming arguendo that P.D. No. 81, P.D. No. 1177 and P.D. No. 1967
did not expire with the ouster of President Marcos, after the adoption of the 1987 Constitution, the said
decrees are inoperative under Section 3, Article XVIII which provides ––
Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed,
or revoked." (Emphasis supplied.)
They then point out that since the said decrees are inconsistent with Section 24, Article VI of the
Constitution, i.e.,
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the Senate
may propose or concur with amendments. (Emphasis supplied.)
whereby bills have to be approved by the President,10 then a law must be passed by Congress to authorize
said automatic appropriation. Further, petitioners state said decrees violate Section 29(l) of Article VI of the
Constitution which provides as follows ––

Sec. 29(l). No money shall be paid out of the Treasury except in pursuance of an appropriation made by
law.
They assert that there must be definiteness, certainty and exactness in an appropriation,11 otherwise it is
an undue delegation of legislative power to the President who determines in advance the amount
appropriated for the debt service.12
The Court is not persuaded.
Section 3, Article XVIII of the Constitution recognizes that "All existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances not inconsistent with the Constitution
shall remain operative until amended, repealed or revoked."
This transitory provision of the Constitution has precisely been adopted by its framers to preserve the
social order so that legislation by the then President Marcos may be recognized. Such laws are to remain in
force and effect unless they are inconsistent with the Constitution or, are otherwise amended, repealed or
revoked.
An examination of the aforecited presidential decrees show the clear intent that the amounts needed to
cover the payment of the principal and interest on all foreign loans, including those guaranteed by the
national government, should be made available when they shall become due precisely without the
necessity of periodic enactments of separate laws appropriating funds therefor, since both the periods and
necessities are incapable of determination in advance.
The automatic appropriation provides the flexibility for the effective execution of debt management
policies. Its political wisdom has been convincingly discussed by the Solicitor General as he argues —
. . . First, for example, it enables the Government to take advantage of a favorable turn of market
conditions by redeeming high-interest securities and borrowing at lower rates, or to shift from short-term
to long-term instruments, or to enter into arrangements that could lighten our outstanding debt burden
debt-to-equity, debt to asset, debt-to-debt or other such schemes. Second, the automatic appropriation
obviates the serious difficulties in debt servicing arising from any deviation from what has been previously
programmed. The annual debt service estimates, which are usually made one year in advance, are based
on a mathematical set or matrix or, in layman's parlance, "basket" of foreign exchange and interest rate
assumptions which may significantly differ from actual rates not even in proportion to changes on the basis
of the assumptions. Absent an automatic appropriation clause, the Philippine Government has to await and
depend upon Congressional action, which by the time this comes, may no longer be responsive to the
intended conditions which in the meantime may have already drastically changed. In the meantime, also,
delayed payments and arrearages may have supervened, only to worsen our debt service-to-total
expenditure ratio in the budget due to penalties and/or demand for immediate payment even before due
dates.
Clearly, the claim that payment of the loans and indebtedness is conditioned upon the continuance of the
person of President Marcos and his legislative power goes against the intent and purpose of the law. The
purpose is foreseen to subsist with or without the person of Marcos.13
The argument of petitioners that the said presidential decrees did not meet the requirement and are
therefore inconsistent with Sections 24 and 27 of Article VI of the Constitution which requires, among
others, that "all appropriations, . . . bills authorizing increase of public debt" must be passed by Congress
and approved by the President is untenable. Certainly, the framers of the Constitution did not contemplate
that existing laws in the statute books including existing presidential decrees appropriating public money
are reduced to mere "bills" that must again go through the legislative million The only reasonable
interpretation of said provisions of the Constitution which refer to "bills" is that they mean appropriation
measures still to be passed by Congress. If the intention of the framers thereof were otherwise they should
have expressed their decision in a more direct or express manner.
Well-known is the rule that repeal or amendment by implication is frowned upon. Equally fundamental is
the principle that construction of the Constitution and law is generally applied prospectively and not
retrospectively unless it is so clearly stated.
On the third issue that there is undue delegation of legislative power, in Edu vs. Ericta,14 this Court had this
to say ––
What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them; the test is the completeness of the statute in all its terms and provisions when it leaves the hands of
the legislature. To determine whether or not there is an undue delegation of legislative power, the inequity
must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate
its function when it describes what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way in which legislative process can go
forward . . .
To avoid the taint of unlawful delegation there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy . . .
The standard may be either express or implied . . . from the policy and purpose of the act considered as
whole . . .
In People vs. Vera,15 this Court said "the true distinction is between the delegation of power to make the
law, which necessarily involves discretion as to what the law shall be, and conferring 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."
Ideally, the law must be complete in all its essential terms and conditions when it leaves the legislature so
that there will be nothing left for the delegate to do when it reaches him except enforce it. If there are gaps
in the law that will prevent its enforcement unless they are first filled, the delegate will then have been
given the opportunity to step in the shoes of the legislature and exercise a discretion essentially legislative
in order to repair the omissions. This is invalid delegation.16
The Court finds that in this case the questioned laws are complete in all their essential terms and
conditions and sufficient standards are indicated therein.
The legislative intention in R.A. No. 4860, as amended, Section 31 of P.D. No. 1177 and P.D. No. 1967 is
that the amount needed should be automatically set aside in order to enable the Republic of the
Philippines to pay the principal, interest, taxes and other normal banking charges on the loans, credits or
indebtedness incurred as guaranteed by it when they shall become due without the need to enact a
separate law appropriating funds therefor as the need arises. The purpose of these laws is to enable the
government to make prompt payment and/or advances for all loans to protect and maintain the credit
standing of the country.
Although the subject presidential decrees do not state specific amounts to be paid, necessitated by the
very nature of the problem being addressed, the amounts nevertheless are made certain by the legislative
parameters provided in the decrees. The Executive is not of unlimited discretion as to the amounts to be
disbursed for debt servicing. The mandate is to pay only the principal, interest, taxes and other normal 4. Budget accountability. The fourth phase refers to the evaluation of actual performance and
banking charges on the loans, credits or indebtedness, or on the bonds, debentures or security or other initially approved work targets, obligations incurred, personnel hired and work accomplished are compared
evidences of indebtedness sold in international markets incurred by virtue of the law, as and when they with the targets set at the time the agency budgets were approved.
shall become due. No uncertainty arises in executive implementation as the limit will be the exact amounts
as shown by the books of the Treasury. There being no undue delegation of legislative power as clearly above shown, petitioners insist
nevertheless that subject presidential decrees constitute undue delegation of legislative power to the
The Government budgetary process has been graphically described to consist of four major phases as aptly executive on the alleged ground that the appropriations therein are not exact, certain or definite, invoking
discussed by the Solicitor General: in support therefor the Constitution of Nebraska, the constitution under which the case of State v. Moore,
69 NW 974, cited by petitioners, was decided. Unlike the Constitution of Nebraska, however, our
The Government budgeting process consists of four major phases: Constitution does not require a definite, certain, exact or "specific appropriation made by law." Section 29,
Article VI of our 1987 Constitution omits any of these words and simply states:
1. Budget preparation. The first step is essentially tasked upon the Executive Branch and
covers the estimation of government revenues, the determination of budgetary priorities and activities Section 29(l). No money shall be paid out of the treasury except in pursuance of an appropriation
within the constraints imposed by available revenues and by borrowing limits, and the translation of made by law.
desired priorities and activities into expenditure levels.
More significantly, there is no provision in our Constitution that provides or prescribes any particular form
Budget preparation starts with the budget call issued by the Department of Budget and Management. Each of words or religious recitals in which an authorization or appropriation by Congress shall be made, except
agency is required to submit agency budget estimates in line with the requirements consistent with the that it be "made by law," such as precisely the authorization or appropriation under the questioned
general ceilings set by the Development Budget Coordinating Council (DBCC). presidential decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as
by past but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws
With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest rates by the present Congress), just as said appropriation may be made in general as well as in specific terms.
(e.g. LIBOR rate) and estimated sources of domestic and foreign financing, estimates debt service levels. The Congressional authorization may be embodied in annual laws, such as a general appropriations act or
Upon issuance of budget call, the Bureau of Treasury computes for the interest and principal payments for in special provisions of laws of general or special application which appropriate public funds for specific
the year for all direct national government borrowings and other liabilities assumed by the same. public purposes, such as the questioned decrees. An appropriation measure is sufficient if the legislative
intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32 P.
2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or acts 272), whether in the past or in the present.17
on the budget proposals of the President, and Congress in the exercise of its own judgment and wisdom
formulates an appropriation act precisely following the process established by the Constitution, which Thus, in accordance with Section 22, Article VII of the 1987 Constitution, President Corazon C. Aquino
specifies that no money may be paid from the Treasury except in accordance with an appropriation made submitted to Congress the Budget of Expenditures and Sources of Financing for the Fiscal Year 1990. The
by law. proposed 1990 expenditure program covering the estimated obligation that will be incurred by the national
government during the fiscal year amounts to P233.5 Billion. Of the proposed budget, P86.8 is set aside for
Debt service is not included in the General Appropriation Act, since authorization therefor already exists debt servicing as follows:
under RA No. 4860 and 245, as amended and PD 1967. Precisely in the fight of this subsisting authorization
as embodied in said Republic Acts and PD for debt service, Congress does not concern itself with details for 1âwphi1
implementation by the Executive, but largely with annual levels and approval thereof upon due National Government Debt
deliberations as part of the whole obligation program for the year. Upon such approval, Congress has Service Expenditures, 1990
spoken and cannot be said to have delegated its wisdom to the Executive, on whose part lies the (in million pesos)
implementation or execution of the legislative wisdom.
Domestic
3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers RA 245, as
the various operational aspects of budgeting. The establishment of obligation authority ceilings, the amended Foreign
evaluation of work and financial plans for individual activities, the continuing review of government fiscal RA 4860
position, the regulation of funds releases, the implementation of cash payment schedules, and other as amended,
related activities comprise this phase of the budget cycle. PD 1967 Total
Interest
Release from the debt service fired is triggered by a request of the Bureau of the Treasury for allotments Payments P36,861 P18,570 P55,431
from the Department of Budget and Management, one quarter in advance of payment schedule, to ensure Principal
prompt payments. The Bureau of Treasury, upon receiving official billings from the creditors, remits Amortization 16,310 15,077 31,387
payments to creditors through the Central Bank or to the Sinking Fund established for government security Total
issues (Annex F). P53,171
========
P33,647
========
P86,818
======== 18
as authorized under P.D. 1967 and R.A. 4860 and 245, as amended.
The Court, therefor, finds that R.A. No. 4860, as amended by P.D. No. 81, Section 31 of P.D. 1177 and P.D.
No. 1967 constitute lawful authorizations or appropriations, unless they are repealed or otherwise
amended by Congress. The Executive was thus merely complying with the duty to implement the same.
There can be no question as to the patriotism and good motive of petitioners in filing this petition.
Unfortunately, the petition must fail on the constitutional and legal issues raised. As to whether or not the
country should honor its international debt, more especially the enormous amount that had been incurred
by the past administration, which appears to be the ultimate objective of the petition, is not an issue that is
presented or proposed to be addressed by the Court. Indeed, it is more of a political decision for Congress
and the Executive to determine in the exercise of their wisdom and sound discretion.
WHEREFORE, the petition is DISMISSED, without pronouncement as to costs.
SO ORDERED.
G.R. No. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as
Administrator of the Philippine Overseas Employment Administration, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged
principally in the recruitment of Filipino workers, male and female, for overseas placement," 1 challenges
the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF
DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and
prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it
"does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and
that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for
worker participation "in policy and decision-making processes affecting their rights and benefits as may be
provided by law." 4 Department Order No. 1, it is contended, was passed in the absence of prior
consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to
the "great and irreparable injury" that PASEI members face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator
of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on
March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan,
Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the
validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine
State.
It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is
whether or not it is valid under the Constitution.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in
general terms to underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could
be done, provides enough room for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty.
It is a fundamental attribute of government that has enabled it to perform the most vital functions of
governance. Marshall, to whom the expression has been credited, 7 refers to it succinctly as the plenary
power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed
the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good
order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of
individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act
according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater
number.
Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome
consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats
the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to
further private interests at the expense of the citizenry, there is a clear misuse of the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing evidence
to the contrary, the presumption logically stands.
The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is
no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not
thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law"
under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits
of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane
to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all
members of the same class. 16
The Court is satisfied that the classification made-the preference for female workers — rests on substantial
distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female
labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a
few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina
workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are
compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the
Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.
The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except
perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The
petitioner has proffered no argument that the Government should act similarly with respect to male
workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to
women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers
are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the
Government acted in this case. It is evidence capable indeed of unquestionable demonstration and
evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned.
There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as
classifications are concerned, this Court is content that distinctions are borne by the evidence.
Discrimination in this case is justified.
As we have furthermore indicated, executive determinations are generally final on the Court. Under a
republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the
proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution
or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great
respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has
specifically given them enough room on how the law should be effectively enforced. In the case at bar,
there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that Department
Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be noted is
the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions
indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment
Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare.
The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long
as those conditions exist. This is clear from the Order itself ("Pending review of the administrative and legal
measures, in the Philippines and in the host countries . . ."18), meaning to say that should the authorities
arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap
measure, it is possessed of a necessary malleability, depending on the circumstances of each case.
Accordingly, it provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment (DOLE)
may, upon recommendation of the Philippine Overseas Employment
Administration (POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to ensure the welfare
and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers.
That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban
been given universal applicability, then it would have been unreasonable and arbitrary. For obvious
reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a
select person or group of persons within an existing class, to the prejudice of such a person or group or
resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to
workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection
clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A
and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and
needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on such distinctions
that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it
would seem, is to recognize its validity only if the young, the women, and the cultural minorities are singled
out for favorable treatment. There would be an element of unreasonableness if on the contrary their status
that calls for the law ministering to their needs is made the basis of discriminatory legislation against them.
If such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the case
at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From
scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of
similar skills defined herein to the following [sic] are authorized under these
guidelines and are exempted from the suspension.
5.1 Hirings by immediate members of the family of Heads
of State and Government;
5.2 Hirings by Minister, Deputy Minister and the other
senior government officials; and
5.3 Hirings by senior officials of the diplomatic corps and
duly accredited international organizations.
5.4 Hirings by employers in countries with whom the
Philippines have [sic] bilateral labor agreements or
understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--
Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the same
employer to finish an existing or partially served employment contract. Those
workers returning to worksite to serve a new employer shall be covered by the
suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may,
upon recommendation of the Philippine Overseas Employment Administration
(POEA), lift the suspension in countries where there are:
1. Bilateral agreements or understanding with the
Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards
to ensure the welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel does not impair the right. The right to
travel is subject, among other things, to the requirements of "public safety," "as may be provided by
law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy
to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority
vested in it by the Labor Code. 27 The petitioner assumes that it is unreasonable simply because of its
impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a
valid qualification thereto.
Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of
legislative power. It is true that police power is the domain of the legislature, but it does not mean that
such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the
Department of Labor and Employment with rulemaking powers in the enforcement whereof. 28
The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-
making processes affecting their rights and benefits" 29 is not well-taken. The right granted by this
provision, again, must submit to the demands and necessities of the State's power of regulation.
The Constitution declares that:
Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all. 30
"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution
more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough
that the country has to send its sons and daughters to strange lands because it cannot satisfy their
employment needs at home. Under these circumstances, the Government is duty-bound to insure that our
toiling expatriates have adequate protection, personally and economically, while away from home. In this
case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or
inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on
deployment.
The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is
not contested that it has in fact removed the prohibition with respect to certain countries as manifested by
the Solicitor General.
The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier
purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is
not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a
controlling economic way of life.
This Court understands the grave implications the questioned Order has on the business of recruitment.
The concern of the Government, however, is not necessarily to maintain profits of business firms. In the
ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The Government has convinced the Court in this case
that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to
warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.
SO ORDERED.
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as
taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and as
taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as non-governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members of the Philippine Senate
who concurred in the ratification by the President of the Philippines of the Agreement Establishing the World
Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade
and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his
capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and
TEOFISTO T. GUINGONA, in his capacity as Executive Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto
of the vast majority of countries has revolutionized international business and economic relations amongst
states. It has irreversibly propelled the world towards trade liberalization and economic globalization.
Liberalization, globalization, deregulation and privatization, the third-millennium buzz words, are ushering
in a new borderless world of business by sweeping away as mere historical relics the heretofore traditional
modes of promoting and protecting national economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the
best in specific industries in a market-driven and export-oriented global scenario are replacing age-old
"beggar-thy-neighbor" policies that unilaterally protect weak and inefficient domestic producers of goods
and services. In the words of Peter Drucker, the well-known management guru, "Increased participation in
the world economy has become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions — inspired by that grand political body, the United Nations
— were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second,
the International Monetary Fund (IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other states.
However, for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF
and WB, never took off. What remained was only GATT — the General Agreement on Tariffs and Trade.
GATT was a collection of treaties governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo
Round and the Uruguay Round, the world finally gave birth to that administering body — the World Trade
Organization — with the signing of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.1
Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access
to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products." The President also saw in the WTO the opening of "new
opportunities for the services sector . . . , (the reduction of) costs and uncertainty associated with exporting
. . . , and (the attraction of) more investments into the country." Although the Chief Executive did not
expressly mention it in his letter, the Philippines — and this is of special interest to the legal profession —
will benefit from the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade
disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis
of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-
countries on the same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or
impairs" the constitutional powers of both Congress and the Supreme Court, the instant petition before
this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to "develop a
self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally
produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it proscribe Philippine integration into a global economy
that is liberalized, deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by
the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public officials and employees, as well as the use
of government properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities, with a view to seeking approval of the
Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from
the President of the Philippines,3 stating among others that "the Uruguay Round Final Act is hereby
submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received another letter from the President of
the Philippines4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final
Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions,
and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of
P.S. 1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World
Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines
of the Agreement Establishing the World Trade Organization." 6 The text of the WTO Agreement is written
on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said Agreement as Annexes
1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed7 the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of
the Philippines, after having seen and considered the aforementioned Agreement
Establishing the World Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994,
do hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and "the associated legal instruments included in Annexes one (1), two (2) and three (3)
of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and
its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the
Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,8 the
Solicitor General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five declarations and
decisions on a wide range of matters, such as measures in favor of least developed
countries, notification procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other
things, standstill or limitations and qualifications of commitments to existing non-
conforming measures, market access, national treatment, and definitions of non-
resident supplier of financial services, commercial presence and new financial
service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment
and petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the
petition, and the parties thereafter filed their respective memoranda. The court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,
Switzerland, to submit a paper, hereafter referred to as "Bautista Paper," 9 for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and (2) the transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine
treaties signed prior to the Philippine adherence to the WTO Agreement, which
derogate from Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated
October 24, 1996, he listed the various "bilateral or multilateral treaties or international instruments
involving derogation of Philippine sovereignty." Petitioners, on the other hand, submitted their Compliance
dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
 B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from impugning
the validity of the Agreement Establishing the World Trade Organization or of the
validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12,
Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization
unduly limit, restrict and impair Philippine sovereignty specifically the legislative
power which, under Sec. 2, Article VI, 1987 Philippine Constitution is "vested in the
Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization
interfere with the exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of
discretion amounting to lack or excess of jurisdiction when they concurred only in
the ratification of the Agreement Establishing the World Trade Organization, and
not with the Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on Commitments in Financial
Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised
by petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the World Trade
Organization and the Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement" cited by petitioners
directly contravene or undermine the letter, spirit and intent of Section 19, Article
II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or
impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of
judicial power by this Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the
President of the Philippines of the Agreement establishing the World Trade
Organization" implied rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada and Anna Dominique
Coseteng) are estopped from joining this suit; and (3) whether the respondent-members of the Senate
acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus:
(1) The "political question" issue — being very fundamental and vital, and being a matter that probes into
the very jurisdiction of this Court to hear and decide this case — was deliberated upon by the Court and
will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in
respondents' favor, will not cause the petition's dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as
an integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably
realized that grave constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public interest requires that the
substantive issues be met head on and decided on the merits, rather than skirted or deflected by
procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS
COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT,
OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF
JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE
FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. "The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." 12 Once a "controversy as to the
application or interpretation of a 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." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987
Constitution, 15 as follows:
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.
The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law. 16As explained by former Chief Justice Roberto Concepcion, 17 "the judiciary
is the final arbiter on the question of whether or not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment
on matters of this nature."
As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy
in the ordinary course of law, we have no hesitation at all in holding that this petition should be given due
course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court.
Indeed, 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. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass
upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule
on the propriety of the government's economic policy of reducing/removing tariffs, taxes, subsidies,
quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty
"to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic
nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered in
various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and independent national economy
effectively controlled by Filipinos.
xxx xxx xxx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xxx xxx xxx
Sec. 10. . . . The Congress shall enact measures that will encourage the formation
and operation of enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy
and patrimony, the State shall give preference to qualified Filipinos.
xxx xxx xxx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and locally produced goods, and adopt measures that help make them
competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions
quoted in their memorandum: 19
a) In the area of investment measures related to trade in goods (TRIMS, for
brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under
GATT 1994, no Member shall apply any TRIM that is
inconsistent with the provisions of Article II or Article XI of
GATT 1994.
2. An illustrative list of TRIMS that are inconsistent with the
obligations of general elimination of quantitative
restrictions provided for in paragraph I of Article XI of GATT
1994 is contained in the Annex to this Agreement."
(Agreement on Trade-Related Investment Measures, Vol.
27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided
for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of
volume or value of products, or in terms of proportion of
volume or value of its local production; or
(b) that an enterprise's purchases or use of imported
products be limited to an amount related to the volume or
value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994
include those which are mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which restrict:
(a) the importation by an enterprise of products used in or
related to the local production that it exports;
(b) the importation by an enterprise of products used in or
related to its local production by restricting its access to
foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of
products, or in terms of a preparation of volume or value of
its local production. (Annex to the Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round
Legal Documents, p. 22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party
imported into the territory of any other contracting
party shall be accorded treatment no less favorable than
that accorded to like products of national origin in respect
of laws, regulations and requirements affecting their
internal sale, offering for sale, purchase, transportation,
distribution or use, the provisions of this paragraph shall
not prevent the application of differential internal
transportation charges which are based exclusively on the
economic operation of the means of transport and not on
the nationality of the product." (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI
 of GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and
Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p.
177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
Each Member shall accord to the nationals of other
Members treatment no less favourable than that it accords
to its own nationals with regard to the protection of
intellectual property. . . (par. 1 Article 3, Agreement on
Trade-Related Aspect of Intellectual Property rights, Vol.
31, Uruguay Round, Legal Instruments, p. 25432 (emphasis
supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to
any conditions and qualifications set out therein, each
Member shall accord to services and service suppliers of
any other Member, in respect of all measures affecting the
supply of services, treatment no less favourable than it
accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by
according to services and service suppliers of any other
Member, either formally suppliers of any other Member,
either formally identical treatment or formally different
treatment to that it accords to its own like services and
service suppliers.
3. Formally identical or formally different treatment shall
be considered to be less favourable if it modifies the
conditions of completion in favour of services or service
suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII,
General Agreement on Trade in Services, Vol. 28, Uruguay
Round Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO
Agreement "place nationals and products of member countries on the same footing as Filipinos and local
products," in contravention of the "Filipino First" policy of the Constitution. They allegedly render
meaningless the phrase "effectively controlled by Filipinos." The constitutional conflict becomes more
manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to
ensure the conformity of its laws, regulations and administrative procedures with its obligations as
provided in the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are
not self-executing and merely set out general policies; (2) that these nationalistic portions of the
Constitution invoked by petitioners should not be read in isolation but should be related to other relevant
provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do
not conflict with Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect
developing countries like the Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The
counterpart of this article in the 1935 Constitution 21 is called the "basic political creed of the nation" by
Dean Vicente Sinco. 22 These principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts. 23They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies enumerated in Article II and
some sections of Article XII are not "self-executing provisions, the disregard of which can give rise to a
cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines
for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative
enactments to implement the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12
(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it
to state also that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be passed by Congress
to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not
intended to be self-executing principles ready for
enforcement through the courts. They were rather
directives addressed to the executive and to the legislature.
If the executive and the legislature failed to heed the
directives of the article, the available remedy was not
judicial but political. The electorate could express their
displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol.
II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional principles are
sourced from basic considerations of due process and the lack of judicial authority to wade "into the
uncharted ocean of social and economic policy making." Mr. Justice Florentino P. Feliciano in his concurring
opinion in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:
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 Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public respondent by petitioners so that
the trial court can validly render judgment grating 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 principles 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 regulation 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:
Sec. 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 discretion 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 executive 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.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating
to the national economy and patrimony, should be read and understood in relation to the other sections in
said article, especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods
and services produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full
and efficient use of human and natural resources, and which are competitive in
both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the
country shall be given optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and
utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the
people; and
3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions
covering the national economy and patrimony" 27 and in the use of "Filipino labor, domestic materials and
locally-produced goods"; (2) by mandating the State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to "develop a self-reliant and independent national economy
effectively controlled by Filipinos." 29 In similar language, the Constitution takes into account the realities of
the outside world as it requires the pursuit of "a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and speaks of industries
"which are competitive in both domestic and foreign markets" as well as of the protection of "Filipino
enterprises against unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al., 31 this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rule
for its enforcement. From its very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the constitutional provision itself states, it is
enforceable only in regard to "the grants of rights, privileges and concessions covering national economy
and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the
rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the
issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to
ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on
the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. 32 In other words, the Constitution did not intend to pursue
an isolationist policy. It did not shut out foreign investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact, it allows an exchange
on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect
weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where
major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are
made on the basis of sovereign equality, with each member's vote equal in weight to that of any other.
There is no WTO equivalent of the UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the
Ministerial Conference and the General Council shall be taken by the majority of
the votes cast, except in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through the WTO than through
one-on-one negotiations with developed countries. Within the WTO, developing countries can form
powerful blocs to push their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles
underlying the WTO Agreement recognize the need of developing countries like the Philippines to "share in
the growth in international trade commensurate with the needs of their economic development." These
basic principles are found in the preamble 34of the WTO Agreement as follows:
The Parties to this Agreement,
 Recognizing that their relations in the field of trade and economic endeavour
should be conducted with a view to raising standards of living, ensuring full
employment and a large and steadily growing volume of real income and effective
demand, and expanding the production of and trade in goods and services, while
allowing for the optimal use of the world's resources in accordance with the
objective of sustainable development, seeking both to protect and preserve the
environment and to enhance the means for doing so in a manner consistent with
their respective needs and concerns at different levels of economic development,
Recognizing further that there is need for positive efforts designed to ensure that
developing countries, and especially the least developed among them, secure
a share in the growth in international trade commensurate with the needs of their
economic development,
Being desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of
tariffs and other barriers to trade and to the elimination of discriminatory
treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral
trading system encompassing the General Agreement on Tariffs and Trade, the
results of past trade liberalization efforts, and all of the results of the Uruguay
Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives
underlying this multilateral trading system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles,
the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries
some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of tariff reduction and the period within
which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36%
for developed countries to be effected within a period of six (6) years while developing countries —
including the Philippines — are required to effect an average tariff reduction of only 24% within ten (10)
years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices
including anti-dumping measures, countervailing measures and safeguards against import surges. Where
local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures.
There is hardly therefore any basis for the statement that under the WTO, local industries and enterprises
will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the
weaker situations of developing nations like the Philippines have been taken into account; thus, there
would be no basis to say that in joining the WTO, the respondents have gravely abused their discretion.
True, they have made a bold decision to steer the ship of state into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion, simply
because we disagree with it or simply because we believe only in other economic policies. As earlier stated,
the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country that is keenly
aware of overdependence on external assistance for even its most basic needs. It
does not mean autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence refers to the freedom
from undue foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination"
cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to
all WTO members. Aside from envisioning a trade policy based on "equality and reciprocity," 37 the
fundamental law encourages industries that are "competitive in both domestic and foreign markets,"
thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of
the gradual development of robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong
have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy
of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does
it contain any specific pronouncement that Filipino companies should be pampered with a total
proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and services obtainable anywhere in the world at the
most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the
general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will — as promised by its
promoters — expand the country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable
rates to the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers thereto
are not subject to judicial pronouncements based on grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in
1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers
might not have anticipated the advent of a borderless world of business. By the same token, the United
Nations was not yet in existence when the 1935 Constitution became effective. Did that necessarily mean
that the then Constitution might not have contemplated a diminution of the absoluteness of sovereignty
when the Philippines signed the UN Charter, thereby effectively surrendering part of its control over its
foreign relations to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent
political law writer and respected jurist 38explains:
The Constitution must be quintessential rather than superficial, the root and not
the blossom, the base and frame-work only of the edifice that is yet to rise. It is but
the core of the dream that must take shape, not in a twinkling by mandate of our
delegates, but slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown
from the brow of the Constitutional Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it seeks to re-structure and march
apace with the progress of the race, drawing from the vicissitudes of history the
dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing,
living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements." 39 Petitioners
maintain that this undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress
of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest and general welfare if such
legislation will not conform with the WTO Agreement, which not only relates to the trade in goods . . . but
also to the flow of investments and money . . . as well as to a whole slew of agreements on socio-cultural
matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged
in the Congress. 41 And while the Constitution allows Congress to authorize the President to fix tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is
subject to "specified limits and . . . such limitations and restrictions" as Congress may provide, 42 as in fact it
did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on
this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles
and State Policies, the Constitution "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." 43 By the doctrine of incorporation, the country is bound by generally accepted principles
of international law, which are considered to be automatically part of our own laws. 44 One of the oldest
and most fundamental rules in international law is pacta sunt servanda — international agreements must
be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid international obligations is bound to
make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken." 45
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by
or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations. 46 The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As
aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient
nationalism is over. The age of interdependence is here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the "concept of sovereignty as auto-limitation."47-A Under Article 2 of the
UN Charter, "(a)ll members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping
operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice
held that money used by the United Nations Emergency Force in the Middle East and in the Congo were
"expenses of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members
must bear their corresponding share in such expenses. In this sense, the Philippine Congress is restricted in
its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy
diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within
their own territory. Another example: although "sovereign equality" and "domestic jurisdiction" of all
members are set forth as underlying principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance of international peace and
security under Chapter VII of the Charter. A final example: under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present charter shall
prevail," thus unquestionably denying the Philippines — as a member — the sovereign power to make a
choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts — both bilateral
and multilateral — that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor
General in his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where
the Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment
Corporation of the United States. Likewise, in said convention, wages, salaries and
similar remunerations paid by the United States to its citizens for labor and
personal services performed by them as employees or officials of the United States
are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance
of double taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double
taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to
exempt from all customs duties, inspection fees and other duties or taxes aircrafts
of South Korea and the regular equipment, spare parts and supplies arriving with
said aircrafts.
 (f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs duties, excise taxes, inspection fees and other similar duties,
taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on
board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the same privileges as those granted to Japanese and Korean air
carriers under separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or
visitor visas for a sojourn in the Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that
premises of Special Missions in the Philippines are inviolable and its agents can not
enter said premises without consent of the Head of Mission concerned. Special
Missions are also exempted from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the
Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction
of the International Court of Justice. The International Court of Justice has
jurisdiction in all legal disputes concerning the interpretation of a treaty, any
question of international law, the existence of any fact which, if established, would
constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers
of taxation, eminent domain and police power. The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.
International treaties, whether relating to nuclear disarmament, human rights, the
environment, the law of the sea, or trade, constrain domestic political sovereignty
through the assumption of external obligations. But unless anarchy in international
relations is preferred as an alternative, in most cases we accept that the benefits of
the reciprocal obligations involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations by reference to
durable, well-defined substantive norms and objective dispute resolution
procedures reduce the risks of larger countries exploiting raw economic power to
bully smaller countries, by subjecting power relations to some form of legal
ordering. In addition, smaller countries typically stand to gain disproportionately
from trade liberalization. This is due to the simple fact that liberalization will
provide access to a larger set of potential new trading relationship than in case of
the larger country gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . . cooperation
and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of the
Supreme Court to promulgate rules concerning pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as
follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights
of the owner referred to in paragraph 1 (b) of Article 28, if the subject matter of a
patent is a process for obtaining a product, the judicial authorities shall have the
authority to order the defendant to prove that the process to obtain an identical
product is different from the patented process. Therefore, Members shall provide,
in at least one of the following circumstances, that any identical product when
produced without the consent of the patent owner shall, in the absence of proof to
the contrary, be deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical
product was made by the process and the owner of the
patent has been unable through reasonable efforts to
determine the process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on the alleged infringer only if the condition referred to in
subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b)
is fulfilled.
3. In the adduction of proof to the contrary, the legitimate interests of defendants
in protecting their manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence
of proof to the contrary") presumption that a product shown to be identical to one produced with the use
of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented
process, (1) where such product obtained by the patented product is new, or (2) where there is
"substantial likelihood" that the identical product was made with the use of the said patented process but
the owner of the patent could not determine the exact process used in obtaining such identical product.
Hence, the "burden of proof" contemplated by Article 34 should actually be understood as the duty of the
alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers
to the "burden of evidence" (burden of going forward) placed on the producer of the identical (or fake)
product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is "identical" to the genuine one produced by the
patented process and the fact of "newness" of the genuine product or the fact of "substantial likelihood"
that the identical product was made by the patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the
subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a patent for utility
model shall consist in unauthorized copying of the patented design or utility model
for the purpose of trade or industry in the article or product and in the making,
using or selling of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process in NEW or (2) there is a substantial
likelihood that the identical product was made by the process and the process owner has not been able
through reasonable effort to determine the process used. Where either of these two provisos does not
obtain, members shall be free to determine the appropriate method of implementing the provisions of
TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue — derogation of
legislative power — will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes — but not in the
other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services — is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is
in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate 53 which enumerated what constitutes the Final Act should have been the subject
of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending
the conference." 54 It is not the treaty itself. It is rather a summary of the proceedings of a protracted
conference which may have taken place over several years. The text of the "Final Act Embodying the
Results of the Uruguay Round of Multilateral Trade Negotiations" is contained in just one page 55 in Vol. I of
the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement
in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the
members can meet "to give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to
the Philippines. It applies only to those 27 Members which "have indicated in their respective schedules of
commitments on standstill, elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information, and national
treatment with respect to access to payment, clearing systems and refinancing available in the normal
course of business."57
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of
trade relations among its Members in matters to the agreements and associated
legal instruments included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and
3, (hereinafter referred to as "Multilateral Agreements") are integral parts of this
Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as "Plurilateral Trade Agreements") are also part of this
Agreement for those Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A
(hereinafter referred to as "GATT 1994") is legally distinct from the General
Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as subsequently
rectified, amended or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown by the members'
deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the
senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up
in the first day hearing of this Committee yesterday. Was the observation made by
Senator Tañada that what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which,
however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until
the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he
making a new submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be
no misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator Tolentino since
they were the ones that raised this question yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is
being submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the Agreement on the World Trade Organization as well as the
Ministerial Declarations and Decisions, and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino?
And after him Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us but I saw the draft of his earlier, and I think it now complies with
the provisions of the Constitution, and with the Final Act itself . The Constitution
does not require us to ratify the Final Act. It requires us to ratify the Agreement
 which is now being submitted. The Final Act itself specifies what is going to be
submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate the WTO Agreement for the consideration of the respective competent
authorities with a view to seeking approval of the Agreement in accordance with
their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the
governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization Agreement. And if
that is the one that is being submitted now, I think it satisfies both the Constitution
and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And they had been adequately reflected in the journal of yesterday's session
and I don't see any need for repeating the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make
any comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the abundance of question. Then the new submission is, I believe,
stating the obvious and therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking
this Court's constitutionally imposed duty "to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction" on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that
petitioners have no other plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent
to lack of jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as
when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility,
and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law. 62 Failure on the part of the petitioner to
show grave abuse of discretion will result in the dismissal of the petition. 63
In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of
two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a
constitutional body independent and coordinate, and thus its actions are presumed regular and done in
good faith. Unless convincing proof and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition
of grave abuse of discretion and the presumption of regularity in the Senate's processes, this Court cannot
find any cogent reason to impute grave abuse of discretion to the Senate's exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino
labor, products, domestic materials and locally produced goods. But it is equally true that such principles —
while serving as judicial and legislative guides — are not in themselves sources of causes of action.
Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which
mandate the pursuit of a "trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity" and the promotion of industries "which
are competitive in both domestic and foreign markets," thereby justifying its acceptance of said treaty. So
too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by
the adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty
and power. We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal
hostility" in such exercise. It is not impossible to surmise that this Court, or at least some of its members,
may even agree with petitioners that it is more advantageous to the national interest to strike down Senate
Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to
nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was
wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation should join the worldwide march toward
trade liberalization and economic globalization is a matter that our people should determine in electing
their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the
political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance 65 where "the East will become the dominant region of the world economically, politically and
culturally in the next century." He refers to the "free market" espoused by WTO as the "catalyst" in this
coming Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible limitations on
national sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable
forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if not
economic self-destruction. Duly enriched with original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for economic prosperity and stability
in the new millennium. Let the people, through their duly authorized elected officers, make their free
choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B. ALARCIO,
FELIPE A. GUICO, JR., BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T. GUICO, FELISA I.
LLAMIDO, FAUSTO J. SALVA, REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE, TEODORO B.
MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA, FELICISIMA C. ARRESTO, CONSUELO M. MORALES,
BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S. FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS, DENNIS JEREZA, HERMINIGILDO GUSTILO,
PAULINO D. TOLENTINO and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias, Negros
Occidental, petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN REFORM COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, HON. JOKER ARROYO,
EXECUTIVE SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs. SALVADOR TALENTO, JAIME
ABOGADO, CONRADO AVANCENA and ROBERTO TAAY, respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND BANK OF THE PHILIPPINES, respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life on his
way to Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung his
adversary to the ground thinking him dead, but Antaeus rose even stronger to resume their struggle. This
happened several times to Hercules' increasing amazement. Finally, as they continued grappling, it dawned
on Hercules that Antaeus was the son of Gaea and could never die as long as any part of his body was
touching his Mother Earth. Thus forewarned, Hercules then held Antaeus up in the air, beyond the reach of
the sustaining soil, and crushed him to death.
Mother Earth. The sustaining soil. The giver of life, without whose invigorating touch even the powerful
Antaeus weakened and died.
The cases before us are not as fanciful as the foregoing tale. But they also tell of the elemental forces of life
and death, of men and women who, like Antaeus need the sustaining strength of the precious earth to stay
alive.
"Land for the Landless" is a slogan that underscores the acute imbalance in the distribution of this precious
resource among our people. But it is more than a slogan. Through the brooding centuries, it has become a
battle-cry dramatizing the increasingly urgent demand of the dispossessed among us for a plot of earth as
their place in the sun.
Recognizing this need, the Constitution in 1935 mandated the policy of social justice to "insure the well-
being and economic security of all the people," 1 especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that "the State shall regulate the acquisition, ownership,
use, enjoyment and disposition of private property and equitably diffuse property ownership and
profits." 2 Significantly, there was also the specific injunction to "formulate and implement an agrarian
reform program aimed at emancipating the tenant from the bondage of the soil." 3
The Constitution of 1987 was not to be outdone. Besides echoing these sentiments, it also adopted one
whole and separate Article XIII on Social Justice and Human Rights, containing grandiose but undoubtedly
sincere provisions for the uplift of the common people. These include a call in the following words for the
adoption by the State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an agrarian reform program founded on
the right of farmers and regular farmworkers, who are landless, to own directly or
collectively the lands they till or, in the case of other farmworkers, to receive a just
share of the fruits thereof. To this end, the State shall encourage and undertake
the just distribution of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may prescribe, taking into account
ecological, developmental, or equity considerations and subject to the payment of
just compensation. In determining retention limits, the State shall respect the right
of small landowners. The State shall further provide incentives for voluntary land-
sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land Reform Code, had already been
enacted by the Congress of the Philippines on August 8, 1963, in line with the above-stated principles. This
was substantially superseded almost a decade later by P.D. No. 27, which was promulgated on October 21,
1972, along with martial law, to provide for the compulsory acquisition of private lands for distribution
among tenant-farmers and to specify maximum retention limits for landowners.
The people power revolution of 1986 did not change and indeed even energized the thrust for agrarian
reform. Thus, on July 17, 1987, President Corazon C. Aquino issued E.O. No. 228, declaring full land
ownership in favor of the beneficiaries of P.D. No. 27 and providing for the valuation of still unvalued lands
covered by the decree as well as the manner of their payment. This was followed on July 22, 1987 by
Presidential Proclamation No. 131, instituting a comprehensive agrarian reform program (CARP), and E.O.
No. 229, providing the mechanics for its implementation.
Subsequently, with its formal organization, the revived Congress of the Philippines took over legislative
power from the President and started its own deliberations, including extensive public hearings, on the
improvement of the interests of farmers. The result, after almost a year of spirited debate, was the
enactment of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988, which
President Aquino signed on June 10, 1988. This law, while considerably changing the earlier mentioned
enactments, nevertheless gives them suppletory effect insofar as they are not inconsistent with its
provisions. 4
The above-captioned cases have been consolidated because they involve common legal questions,
including serious challenges to the constitutionality of the several measures mentioned above. They will be
the subject of one common discussion and resolution, The different antecedents of each case will require
separate treatment, however, and will first be explained hereunder.
G.R. No. 79777
Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No.
6657.
The subjects of this petition are a 9-hectare riceland worked by four tenants and owned by petitioner
Nicolas Manaay and his wife and a 5-hectare riceland worked by four tenants and owned by petitioner
Augustin Hermano, Jr. The tenants were declared full owners of these lands by E.O. No. 228 as qualified
farmers under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on grounds inter alia of separation
of powers, due process, equal protection and the constitutional limitation that no private property shall be
taken for public use without just compensation.
They contend that President Aquino usurped legislative power when she promulgated E.O. No. 228. The
said measure is invalid also for violation of Article XIII, Section 4, of the Constitution, for failure to provide
for retention limits for small landowners. Moreover, it does not conform to Article VI, Section 25(4) and the
other requisites of a valid appropriation.
In connection with the determination of just compensation, the petitioners argue that the same may be
made only by a court of justice and not by the President of the Philippines. They invoke the recent cases
of EPZA v. Dulay 5 andManotok v. National Food Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in money or in cash and not in the form of bonds or other
things of value.
In considering the rentals as advance payment on the land, the executive order also deprives the
petitioners of their property rights as protected by due process. The equal protection clause is also violated
because the order places the burden of solving the agrarian problems on the owners only of agricultural
lands. No similar obligation is imposed on the owners of other properties.
The petitioners also maintain that in declaring the beneficiaries under P.D. No. 27 to be the owners of the
lands occupied by them, E.O. No. 228 ignored judicial prerogatives and so violated due process. Worse, the
measure would not solve the agrarian problem because even the small farmers are deprived of their lands
and the retention rights guaranteed by the Constitution.
In his Comment, the Solicitor General stresses that P.D. No. 27 has already been upheld in the earlier cases
ofChavez v. Zobel, 7 Gonzales v. Estrella, 8 and Association of Rice and Corn Producers of the Philippines, Inc.
v. The National Land Reform Council. 9 The determination of just compensation by the executive authorities
conformably to the formula prescribed under the questioned order is at best initial or preliminary only. It
does not foreclose judicial intervention whenever sought or warranted. At any rate, the challenge to the
order is premature because no valuation of their property has as yet been made by the Department of
Agrarian Reform. The petitioners are also not proper parties because the lands owned by them do not
exceed the maximum retention limit of 7 hectares.
Replying, the petitioners insist they are proper parties because P.D. No. 27 does not provide for retention
limits on tenanted lands and that in any event their petition is a class suit brought in behalf of landowners
with landholdings below 24 hectares. They maintain that the determination of just compensation by the
administrative authorities is a final ascertainment. As for the cases invoked by the public respondent, the
constitutionality of P.D. No. 27 was merely assumed in Chavez, while what was decided in Gonzales was the
validity of the imposition of martial law.
In the amended petition dated November 22, 1588, it is contended that P.D. No. 27, E.O. Nos. 228 and 229
(except Sections 20 and 21) have been impliedly repealed by R.A. No. 6657. Nevertheless, this statute
should itself also be declared unconstitutional because it suffers from substantially the same infirmities as
the earlier measures.
A petition for intervention was filed with leave of court on June 1, 1988 by Vicente Cruz, owner of a 1. 83-
hectare land, who complained that the DAR was insisting on the implementation of P.D. No. 27 and E.O.
No. 228 despite a compromise agreement he had reached with his tenant on the payment of rentals. In a
subsequent motion dated April 10, 1989, he adopted the allegations in the basic amended petition that the
above- mentioned enactments have been impliedly repealed by R.A. No. 6657.
G.R. No. 79310
The petitioners herein are landowners and sugar planters in the Victorias Mill District, Victorias, Negros
Occidental. Co-petitioner Planters' Committee, Inc. is an organization composed of 1,400 planter-members.
This petition seeks to prohibit the implementation of Proc. No. 131 and E.O. No. 229.
The petitioners claim that the power to provide for a Comprehensive Agrarian Reform Program as decreed
by the Constitution belongs to Congress and not the President. Although they agree that the President
could exercise legislative power until the Congress was convened, she could do so only to enact emergency
measures during the transition period. At that, even assuming that the interim legislative power of the
President was properly exercised, Proc. No. 131 and E.O. No. 229 would still have to be annulled for
violating the constitutional provisions on just compensation, due process, and equal protection.
They also argue that under Section 2 of Proc. No. 131 which provides:
Agrarian Reform Fund.-There is hereby created a special fund, to be known as the Agrarian Reform Fund,
an initial amount of FIFTY BILLION PESOS (P50,000,000,000.00) to cover the estimated cost of the
Comprehensive Agrarian Reform Program from 1987 to 1992 which shall be sourced from the receipts of
the sale of the assets of the Asset Privatization Trust and Receipts of sale of ill-gotten wealth received
through the Presidential Commission on Good Government and such other sources as government may
deem appropriate. The amounts collected and accruing to this special fund shall be considered
automatically appropriated for the purpose authorized in this Proclamation the amount appropriated is in
futuro, not in esse. The money needed to cover the cost of the contemplated expropriation has yet to be
raised and cannot be appropriated at this time.
Furthermore, they contend that taking must be simultaneous with payment of just compensation as it is
traditionally understood, i.e., with money and in full, but no such payment is contemplated in Section 5 of
the E.O. No. 229. On the contrary, Section 6, thereof provides that the Land Bank of the Philippines "shall
compensate the landowner in an amount to be established by the government, which shall be based on
the owner's declaration of current fair market value as provided in Section 4 hereof, but subject to certain
controls to be defined and promulgated by the Presidential Agrarian Reform Council." This compensation
may not be paid fully in money but in any of several modes that may consist of part cash and part bond,
with interest, maturing periodically, or direct payment in cash or bond as may be mutually agreed upon by
the beneficiary and the landowner or as may be prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the two measures, no effort was made to make a careful
study of the sugar planters' situation. There is no tenancy problem in the sugar areas that can justify the
application of the CARP to them. To the extent that the sugar planters have been lumped in the same
legislation with other farmers, although they are a separate group with problems exclusively their own,
their right to equal protection has been violated.
A motion for intervention was filed on August 27,1987 by the National Federation of Sugarcane Planters
(NASP) which claims a membership of at least 20,000 individual sugar planters all over the country. On
September 10, 1987, another motion for intervention was filed, this time by Manuel Barcelona, et al.,
representing coconut and riceland owners. Both motions were granted by the Court.
NASP alleges that President Aquino had no authority to fund the Agrarian Reform Program and that, in any
event, the appropriation is invalid because of uncertainty in the amount appropriated. Section 2 of Proc.
No. 131 and Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of fifty billion pesos and
thus specifies the minimum rather than the maximum authorized amount. This is not allowed.
Furthermore, the stated initial amount has not been certified to by the National Treasurer as actually
available.
Two additional arguments are made by Barcelona, to wit, the failure to establish by clear and convincing
evidence the necessity for the exercise of the powers of eminent domain, and the violation of the
fundamental right to own property.
The petitioners also decry the penalty for non-registration of the lands, which is the expropriation of the
said land for an amount equal to the government assessor's valuation of the land for tax purposes. On the
other hand, if the landowner declares his own valuation he is unjustly required to immediately pay the
corresponding taxes on the land, in violation of the uniformity rule.
In his consolidated Comment, the Solicitor General first invokes the presumption of constitutionality in
favor of Proc. No. 131 and E.O. No. 229. He also justifies the necessity for the expropriation as explained in
the "whereas" clauses of the Proclamation and submits that, contrary to the petitioner's contention, a pilot
project to determine the feasibility of CARP and a general survey on the people's opinion thereon are not
indispensable prerequisites to its promulgation.
On the alleged violation of the equal protection clause, the sugar planters have failed to show that they
belong to a different class and should be differently treated. The Comment also suggests the possibility of
Congress first distributing public agricultural lands and scheduling the expropriation of private agricultural
lands later. From this viewpoint, the petition for prohibition would be premature.
The public respondent also points out that the constitutional prohibition is against the payment of public
money without the corresponding appropriation. There is no rule that only money already in existence can
be the subject of an appropriation law. Finally, the earmarking of fifty billion pesos as Agrarian Reform
Fund, although denominated as an initial amount, is actually the maximum sum appropriated. The word
"initial" simply means that additional amounts may be appropriated later when necessary.
On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on his own behalf, assailing the
constitutionality of E.O. No. 229. In addition to the arguments already raised, Serrano contends that the
measure is unconstitutional because:
(1) Only public lands should be included in the CARP;
(2) E.O. No. 229 embraces more than one subject which is not expressed in the
title;
(3) The power of the President to legislate was terminated on July 2, 1987; and
(4) The appropriation of a P50 billion special fund from the National Treasury did
not originate from the House of Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of Department of Agrarian Reform, in violation of due
process and the requirement for just compensation, placed his landholding under the coverage of
Operation Land Transfer. Certificates of Land Transfer were subsequently issued to the private
respondents, who then refused payment of lease rentals to him.
On September 3, 1986, the petitioner protested the erroneous inclusion of his small landholding under
Operation Land transfer and asked for the recall and cancellation of the Certificates of Land Transfer in the
name of the private respondents. He claims that on December 24, 1986, his petition was denied without
hearing. On February 17, 1987, he filed a motion for reconsideration, which had not been acted upon when
E.O. Nos. 228 and 229 were issued. These orders rendered his motion moot and academic because they
directly effected the transfer of his land to the private respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly issued by the President of the Philippines.
 (2) The said executive orders are violative of the constitutional provision that no
private property shall be taken without due process or just compensation.
(3) The petitioner is denied the right of maximum retention provided for under the
1987 Constitution.
The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly before Congress convened is
anomalous and arbitrary, besides violating the doctrine of separation of powers. The legislative power
granted to the President under the Transitory Provisions refers only to emergency measures that may be
promulgated in the proper exercise of the police power.
The petitioner also invokes his rights not to be deprived of his property without due process of law and to
the retention of his small parcels of riceholding as guaranteed under Article XIII, Section 4 of the
Constitution. He likewise argues that, besides denying him just compensation for his land, the provisions of
E.O. No. 228 declaring that:
Lease rentals paid to the landowner by the farmer-beneficiary after October 21,
1972 shall be considered as advance payment for the land.
is an unconstitutional taking of a vested property right. It is also his contention that the inclusion of even
small landowners in the program along with other landowners with lands consisting of seven hectares or
more is undemocratic.
In his Comment, the Solicitor General submits that the petition is premature because the motion for
reconsideration filed with the Minister of Agrarian Reform is still unresolved. As for the validity of the
issuance of E.O. Nos. 228 and 229, he argues that they were enacted pursuant to Section 6, Article XVIII of
the Transitory Provisions of the 1987 Constitution which reads:
The incumbent president shall continue to exercise legislative powers until the first Congress is convened.
On the issue of just compensation, his position is that when P.D. No. 27 was promulgated on October 21.
1972, the tenant-farmer of agricultural land was deemed the owner of the land he was tilling. The
leasehold rentals paid after that date should therefore be considered amortization payments.
In his Reply to the public respondents, the petitioner maintains that the motion he filed was resolved on
December 14, 1987. An appeal to the Office of the President would be useless with the promulgation of
E.O. Nos. 228 and 229, which in effect sanctioned the validity of the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention granted by P.D. No. 27 to owners of rice and corn
lands not exceeding seven hectares as long as they are cultivating or intend to cultivate the same. Their
respective lands do not exceed the statutory limit but are occupied by tenants who are actually cultivating
such lands.
According to P.D. No. 316, which was promulgated in implementation of P.D. No. 27:
No tenant-farmer in agricultural lands primarily devoted to rice and corn shall be
ejected or removed from his farmholding until such time as the respective rights of
the tenant- farmers and the landowner shall have been determined in accordance
with the rules and regulations implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and so are unable to enjoy their right of retention
because the Department of Agrarian Reform has so far not issued the implementing rules required under
the above-quoted decree. They therefore ask the Court for a writ of mandamus to compel the respondent
to issue the said rules.
In his Comment, the public respondent argues that P.D. No. 27 has been amended by LOI 474 removing any
right of retention from persons who own other agricultural lands of more than 7 hectares in aggregate area
or lands used for residential, commercial, industrial or other purposes from which they derive adequate
income for their family. And even assuming that the petitioners do not fall under its terms, the regulations
implementing P.D. No. 27 have already been issued, to wit, the Memorandum dated July 10, 1975 (Interim
Guidelines on Retention by Small Landowners, with an accompanying Retention Guide Table),
Memorandum Circular No. 11 dated April 21, 1978, (Implementation Guidelines of LOI No. 474),
Memorandum Circular No. 18-81 dated December 29,1981 (Clarificatory Guidelines on Coverage of P.D.
No. 27 and Retention by Small Landowners), and DAR Administrative Order No. 1, series of 1985 (Providing
for a Cut-off Date for Landowners to Apply for Retention and/or to Protest the Coverage of their
Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For failure to file the corresponding
applications for retention under these measures, the petitioners are now barred from invoking this right.
The public respondent also stresses that the petitioners have prematurely initiated this case
notwithstanding the pendency of their appeal to the President of the Philippines. Moreover, the issuance
of the implementing rules, assuming this has not yet been done, involves the exercise of discretion which
cannot be controlled through the writ of mandamus. This is especially true if this function is entrusted, as
in this case, to a separate department of the government.
In their Reply, the petitioners insist that the above-cited measures are not applicable to them because they
do not own more than seven hectares of agricultural land. Moreover, assuming arguendo that the rules
were intended to cover them also, the said measures are nevertheless not in force because they have not
been published as required by law and the ruling of this Court in Tanada v. Tuvera.10 As for LOI 474, the
same is ineffective for the additional reason that a mere letter of instruction could not have repealed the
presidential decree.
I
Although holding neither purse nor sword and so regarded as the weakest of the three departments of the
government, the judiciary is nonetheless vested with the power to annul the acts of either the legislative or
the executive or of both when not conformable to the fundamental law. This is the reason for what some
quarters call the doctrine of judicial supremacy. Even so, this power is not lightly assumed or readily
exercised. The doctrine of separation of powers imposes upon the courts a proper restraint, born of the
nature of their functions and of their respect for the other departments, in striking down the acts of the
legislative and the executive as unconstitutional. The policy, indeed, is a blend of courtesy and caution. To
doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies
were made by Congress or the President, or both, to insure that the Constitution would not be breached.
In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality,
requiring therefor the concurrence of a majority of the members of the Supreme Court who took part in
the deliberations and voted on the issue during their session en banc.11 And as established by judge made
doctrine, the Court will assume jurisdiction over a constitutional question only if it is shown that the
essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual
case or controversy involving a conflict of legal rights susceptible of judicial determination, the
constitutional question must have been opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the case itself. 12
With particular regard to the requirement of proper party as applied in the cases before us, we hold that
the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger
of sustaining an immediate injury as a result of the acts or measures complained of. 13 And even if, strictly
speaking, they are not covered by the definition, it is still within the wide discretion of the Court to waive
the requirement and so remove the impediment to its addressing and resolving the serious constitutional
questions raised.
In the first Emergency Powers Cases, 14 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were invoking only
an indirect and general interest shared in common with the public. The Court dismissed the objection that
they were not proper parties and ruled that "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure." We have since then applied this exception in many other cases. 15
The other above-mentioned requisites have also been met in the present petitions.
In must be stressed that despite the inhibitions pressing upon the Court when confronted with
constitutional issues like the ones now before it, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitution as
God and its conscience give it the light to probe its meaning and discover its purpose. Personal motives and
political considerations are irrelevancies that cannot influence its decision. Blandishment is as ineffectual as
intimidation.
For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or
of any public official, betray the people's will as expressed in the Constitution.
It need only be added, to borrow again the words of Justice Laurel, that —
... when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the Legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. This
is in truth all that is involved in what is termed "judicial supremacy" which properly
is the power of judicial review under the Constitution. 16
The cases before us categorically raise constitutional questions that this Court must categorically resolve.
And so we shall.
II
We proceed first to the examination of the preliminary issues before resolving the more serious challenges
to the constitutionality of the several measures involved in these petitions.
The promulgation of P.D. No. 27 by President Marcos in the exercise of his powers under martial law has
already been sustained in Gonzales v. Estrella and we find no reason to modify or reverse it on that issue.
As for the power of President Aquino to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the same
was authorized under Section 6 of the Transitory Provisions of the 1987 Constitution, quoted above.
The said measures were issued by President Aquino before July 27, 1987, when the Congress of the
Philippines was formally convened and took over legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature because E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and E.O. No. 229, were both issued on July 22, 1987. Neither is it
correct to say that these measures ceased to be valid when she lost her legislative power for, like any
statute, they continue to be in force unless modified or repealed by subsequent law or declared invalid by
the courts. A statute does not ipso facto become inoperative simply because of the dissolution of the
legislature that enacted it. By the same token, President Aquino's loss of legislative power did not have the
effect of invalidating all the measures enacted by her when and as long as she possessed it.
Significantly, the Congress she is alleged to have undercut has not rejected but in fact substantially affirmed
the challenged measures and has specifically provided that they shall be suppletory to R.A. No. 6657
whenever not inconsistent with its provisions. 17 Indeed, some portions of the said measures, like the
creation of the P50 billion fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of E.O. No. 229, have
been incorporated by reference in the CARP Law. 18
That fund, as earlier noted, is itself being questioned on the ground that it does not conform to the
requirements of a valid appropriation as specified in the Constitution. Clearly, however, Proc. No. 131 is not
an appropriation measure even if it does provide for the creation of said fund, for that is not its principal
purpose. An appropriation law is one the primary and specific purpose of which is to authorize the release
of public funds from the treasury. 19 The creation of the fund is only incidental to the main objective of the
proclamation, which is agrarian reform.
It should follow that the specific constitutional provisions invoked, to wit, Section 24 and Section 25(4) of
Article VI, are not applicable. With particular reference to Section 24, this obviously could not have been
complied with for the simple reason that the House of Representatives, which now has the exclusive power
to initiate appropriation measures, had not yet been convened when the proclamation was issued. The
legislative power was then solely vested in the President of the Philippines, who embodied, as it were, both
houses of Congress.
The argument of some of the petitioners that Proc. No. 131 and E.O. No. 229 should be invalidated because
they do not provide for retention limits as required by Article XIII, Section 4 of the Constitution is no longer
tenable. R.A. No. 6657 does provide for such limits now in Section 6 of the law, which in fact is one of its
most controversial provisions. This section declares:
Retention Limits. — Except as otherwise provided in this Act, no person may own
or retain, directly or indirectly, any public or private agricultural land, the size of
which shall vary according to factors governing a viable family-sized farm, such as
commodity produced, terrain, infrastructure, and soil fertility as determined by the
Presidential Agrarian Reform Council (PARC) created hereunder, but in no case
shall retention by the landowner exceed five (5) hectares. Three (3) hectares may
be awarded to each child of the landowner, subject to the following qualifications:
(1) that he is at least fifteen (15) years of age; and (2) that he is actually tilling the
land or directly managing the farm; Provided, That landowners whose lands have
been covered by Presidential Decree No. 27 shall be allowed to keep the area
originally retained by them thereunder, further, That original homestead grantees
or direct compulsory heirs who still own the original homestead at the time of the
approval of this Act shall retain the same areas as long as they continue to cultivate
said homestead.
The argument that E.O. No. 229 violates the constitutional requirement that a bill shall have only one
subject, to be expressed in its title, deserves only short attention. It is settled that the title of the bill does
not have to be a catalogue of its contents and will suffice if the matters embodied in the text are relevant
to each other and may be inferred from the title. 20
The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever name
it was called, had the force and effect of law because it came from President Marcos. Such are the ways of
despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI 474 could not have
repealed P.D. No. 27 because the former was only a letter of instruction. The important thing is that it was
issued by President Marcos, whose word was law during that time.
But for all their peremptoriness, these issuances from the President Marcos still had to comply with the
requirement for publication as this Court held in Tanada v. Tuvera. 21 Hence, unless published in the Official
Gazette in accordance with Article 2 of the Civil Code, they could not have any force and effect if they were
among those enactments successfully challenged in that case. LOI 474 was published, though, in the
Official Gazette dated November 29,1976.)
Finally, there is the contention of the public respondent in G.R. No. 78742 that the writ of mandamus
cannot issue to compel the performance of a discretionary act, especially by a specific department of the
government. That is true as a general proposition but is subject to one important qualification. Correctly
and categorically stated, the rule is that mandamus will lie to compel the discharge of the discretionary
duty itself but not to control the discretion to be exercised. In other words, mandamus can issue to require
action only but not specific action.
Whenever a duty is imposed upon a public official and an unnecessary and
unreasonable delay in the exercise of such duty occurs, if it is a clear duty imposed
by law, the courts will intervene by the extraordinary legal remedy of mandamus to
compel action. If the duty is purely ministerial, the courts will require specific
action. If the duty is purely discretionary, the courts by mandamus will require
action only. For example, if an inferior court, public official, or board should, for an
unreasonable length of time, fail to decide a particular question to the great
detriment of all parties concerned, or a court should refuse to take jurisdiction of a
cause when the law clearly gave it jurisdiction mandamus will issue, in the first case
to require a decision, and in the second to require that jurisdiction be taken of the
cause. 22
And while it is true that as a rule the writ will not be proper as long as there is still a plain, speedy and
adequate remedy available from the administrative authorities, resort to the courts may still be permitted
if the issue raised is a question of law. 23
III
There are traditional distinctions between the police power and the power of eminent domain that logically
preclude the application of both powers at the same time on the same subject. In the case of City of Baguio
v. NAWASA, 24for example, where a law required the transfer of all municipal waterworks systems to the
NAWASA in exchange for its assets of equivalent value, the Court held that the power being exercised was
eminent domain because the property involved was wholesome and intended for a public use. Property
condemned under the police power is noxious or intended for a noxious purpose, such as a building on the
verge of collapse, which should be demolished for the public safety, or obscene materials, which should be
destroyed in the interest of public morals. The confiscation of such property is not compensable, unlike the
taking of property under the power of expropriation, which requires the payment of just compensation to
the owner.
In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes laid down the limits of the police power in
a famous aphorism: "The general rule at least is that while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking." The regulation that went "too far" was a law
prohibiting mining which might cause the subsidence of structures for human habitation constructed on
the land surface. This was resisted by a coal company which had earlier granted a deed to the land over its
mine but reserved all mining rights thereunder, with the grantee assuming all risks and waiving any damage
claim. The Court held the law could not be sustained without compensating the grantor. Justice Brandeis
filed a lone dissent in which he argued that there was a valid exercise of the police power. He said:
Every restriction upon the use of property imposed in the exercise of the police
power deprives the owner of some right theretofore enjoyed, and is, in that sense,
an abridgment by the State of rights in property without making compensation. But
restriction imposed to protect the public health, safety or morals from dangers
threatened is not a taking. The restriction here in question is merely the prohibition
of a noxious use. The property so restricted remains in the possession of its owner.
The state does not appropriate it or make any use of it. The state merely prevents
the owner from making a use which interferes with paramount rights of the public.
Whenever the use prohibited ceases to be noxious — as it may because of further
changes in local or social conditions — the restriction will have to be removed and
the owner will again be free to enjoy his property as heretofore.
Recent trends, however, would indicate not a polarization but a mingling of the police power and the
power of eminent domain, with the latter being used as an implement of the former like the power of
taxation. The employment of the taxing power to achieve a police purpose has long been accepted. 26 As
for the power of expropriation, Prof. John J. Costonis of the University of Illinois College of Law (referring to
the earlier case of Euclid v. Ambler Realty Co., 272 US 365, which sustained a zoning law under the police
power) makes the following significant remarks:
Euclid, moreover, was decided in an era when judges located the Police and
eminent domain powers on different planets. Generally speaking, they viewed
eminent domain as encompassing public acquisition of private property for
improvements that would be available for public use," literally construed. To the
police power, on the other hand, they assigned the less intrusive task of preventing
harmful externalities a point reflected in the Euclid opinion's reliance on an analogy
to nuisance law to bolster its support of zoning. So long as suppression of a
privately authored harm bore a plausible relation to some legitimate "public
purpose," the pertinent measure need have afforded no compensation whatever.
With the progressive growth of government's involvement in land use, the distance
between the two powers has contracted considerably. Today government often
employs eminent domain interchangeably with or as a useful complement to the
police power-- a trend expressly approved in the Supreme Court's 1954 decision in
Berman v. Parker, which broadened the reach of eminent domain's "public use"
test to match that of the police power's standard of "public purpose." 27
The Berman case sustained a redevelopment project and the improvement of blighted areas in the District
of Columbia as a proper exercise of the police power. On the role of eminent domain in the attainment of
this purpose, Justice Douglas declared:
If those who govern the District of Columbia decide that the Nation's Capital should
be beautiful as well as sanitary, there is nothing in the Fifth Amendment that
stands in the way.
Once the object is within the authority of Congress, the right to realize it through
the exercise of eminent domain is clear.
For the power of eminent domain is merely the means to the end. 28
In Penn Central Transportation Co. v. New York City, 29 decided by a 6-3 vote in 1978, the U.S Supreme
Court sustained the respondent's Landmarks Preservation Law under which the owners of the Grand
Central Terminal had not been allowed to construct a multi-story office building over the Terminal, which
had been designated a historic landmark. Preservation of the landmark was held to be a valid objective of
the police power. The problem, however, was that the owners of the Terminal would be deprived of the
right to use the airspace above it although other landowners in the area could do so over their respective
properties. While insisting that there was here no taking, the Court nonetheless recognized certain
compensatory rights accruing to Grand Central Terminal which it said would "undoubtedly mitigate" the
loss caused by the regulation. This "fair compensation," as he called it, was explained by Prof. Costonis in
this wise:
In return for retaining the Terminal site in its pristine landmark status, Penn Central was authorized to
transfer to neighboring properties the authorized but unused rights accruing to the site prior to the
Terminal's designation as a landmark — the rights which would have been exhausted by the 59-story
building that the city refused to countenance atop the Terminal. Prevailing bulk restrictions on neighboring
sites were proportionately relaxed, theoretically enabling Penn Central to recoup its losses at the Terminal
site by constructing or selling to others the right to construct larger, hence more profitable buildings on the
transferee sites. 30
The cases before us present no knotty complication insofar as the question of compensable taking is
concerned. To the extent that the measures under challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for the regulation of private property in accordance
with the Constitution. But where, to carry out such regulation, it becomes necessary to deprive such
owners of whatever lands they may own in excess of the maximum area allowed, there is definitely a taking
under the power of eminent domain for which payment of just compensation is imperative. The taking
contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title
to and the physical possession of the said excess and all beneficial rights accruing to the owner in favor of
the farmer-beneficiary. This is definitely an exercise not of the police power but of the power of eminent
domain.
Whether as an exercise of the police power or of the power of eminent domain, the several measures
before us are challenged as violative of the due process and equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground that no retention limits are
prescribed has already been discussed and dismissed. It is noted that although they excited many bitter
exchanges during the deliberation of the CARP Law in Congress, the retention limits finally agreed upon
are, curiously enough, not being questioned in these petitions. We therefore do not discuss them here. The
Court will come to the other claimed violations of due process in connection with our examination of the
adequacy of just compensation as required under the power of expropriation.
The argument of the small farmers that they have been denied equal protection because of the absence of
retention limits has also become academic under Section 6 of R.A. No. 6657. Significantly, they too have
not questioned the area of such limits. There is also the complaint that they should not be made to share
the burden of agrarian reform, an objection also made by the sugar planters on the ground that they
belong to a particular class with particular interests of their own. However, no evidence has been
submitted to the Court that the requisites of a valid classification have been violated.
Classification has been defined as the grouping of persons or things similar to each other in certain
particulars and different from each other in these same particulars. 31 To be valid, it must conform to the
following requirements: (1) it must be based on substantial distinctions; (2) it must be germane to the
purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all
the members of the class. 32 The Court finds that all these requisites have been met by the measures here
challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things similarly situated must be treated alike both as to
the rights conferred and the liabilities imposed. 33 The petitioners have not shown that they belong to a
different class and entitled to a different treatment. The argument that not only landowners but also
owners of other properties must be made to share the burden of implementing land reform must be
rejected. There is a substantial distinction between these two classes of owners that is clearly visible except
to those who will not see. There is no need to elaborate on this matter. In any event, the Congress is
allowed a wide leeway in providing for a valid classification. Its decision is accorded recognition and respect
by the courts of justice except only where its discretion is abused to the detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may be sustained under the police power only if there is
a concurrence of the lawful subject and the lawful method. Put otherwise, the interests of the public
generally as distinguished from those of a particular class require the interference of the State and, no less
important, the means employed are reasonably necessary for the attainment of the purpose sought to be
achieved and not unduly oppressive upon individuals. 34 As the subject and purpose of agrarian reform
have been laid down by the Constitution itself, we may say that the first requirement has been satisfied.
What remains to be examined is the validity of the method employed to achieve the constitutional goal.
One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or
the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a, person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who would deny him that right.
That right covers the person's life, his liberty and his property under Section 1 of Article III of the
Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall not be taken for public use without just
compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the State that enables it to forcibly acquire
private lands intended for public use upon payment of just compensation to the
owner. Obviously, there is no need to expropriate where the owner is willing to sell
under terms also acceptable to the purchaser, in which case an ordinary deed of
sale may be agreed upon by the parties. 35 It is only where the owner is unwilling to
sell, or cannot accept the price or other conditions offered by the vendee, that the
power of eminent domain will come into play to assert the paramount authority of
the State over the interests of the property owner. Private rights must then yield to
the irresistible demands of the public interest on the time-honored justification, as
in the case of the police power, that the welfare of the people is the supreme law.
But for all its primacy and urgency, the power of expropriation is by no means absolute (as indeed no
power is absolute). The limitation is found in the constitutional injunction that "private property shall not
be taken for public use without just compensation" and in the abundant jurisprudence that has evolved
from the interpretation of this principle. Basically, the requirements for a proper exercise of the power are:
(1) public use and (2) just compensation.
Let us dispose first of the argument raised by the petitioners in G.R. No. 79310 that the State should first
distribute public agricultural lands in the pursuit of agrarian reform instead of immediately disturbing
property rights by forcibly acquiring private agricultural lands. Parenthetically, it is not correct to say that
only public agricultural lands may be covered by the CARP as the Constitution calls for "the just distribution
of all agricultural lands." In any event, the decision to redistribute private agricultural lands in the manner
prescribed by the CARP was made by the legislative and executive departments in the exercise of their
discretion. We are not justified in reviewing that discretion in the absence of a clear showing that it has
been abused.
A becoming courtesy admonishes us to respect the decisions of the political departments when they decide
what is known as the political question. As explained by Chief Justice Concepcion in the case of Tañada v.
Cuenco: 36
The term "political question" connotes what it means in ordinary parlance, namely,
a question of policy. It refers to "those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity; or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.
It is true that the concept of the political question has been constricted with the enlargement of judicial
power, which now includes the authority of the courts "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." 37 Even so, this should not be construed as a license for us to reverse
the other departments simply because their views may not coincide with ours.
The legislature and the executive have been seen fit, in their wisdom, to include in the CARP the
redistribution of private landholdings (even as the distribution of public agricultural lands is first provided
for, while also continuing apace under the Public Land Act and other cognate laws). The Court sees no
justification to interpose its authority, which we may assert only if we believe that the political decision is
not unwise, but illegal. We do not find it to be so.
In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:
Congress having determined, as it did by the Act of March 3,1909 that the entire St.
Mary's river between the American bank and the international line, as well as all of
the upland north of the present ship canal, throughout its entire length, was
"necessary for the purpose of navigation of said waters, and the waters connected
therewith," that determination is conclusive in condemnation proceedings
instituted by the United States under that Act, and there is no room for judicial
review of the judgment of Congress ... .
As earlier observed, the requirement for public use has already been settled for us by the Constitution itself
No less than the 1987 Charter calls for agrarian reform, which is the reason why private agricultural lands
are to be taken from their owners, subject to the prescribed maximum retention limits. The purposes
specified in P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an elaboration of the constitutional
injunction that the State adopt the necessary measures "to encourage and undertake the just distribution
of all agricultural lands to enable farmers who are landless to own directly or collectively the lands they
till." That public use, as pronounced by the fundamental law itself, must be binding on us.
The second requirement, i.e., the payment of just compensation, needs a longer and more thoughtful
examination.
Just compensation is defined as the full and fair equivalent of the property taken from its owner by the
expropriator. 39 It has been repeatedly stressed by this Court that the measure is not the taker's gain but
the owner's loss. 40 The word "just" is used to intensify the meaning of the word "compensation" to convey
the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full,
ample. 41
It bears repeating that the measures challenged in these petitions contemplate more than a mere
regulation of the use of private lands under the police power. We deal here with an actual taking of private
agricultural lands that has dispossessed the owners of their property and deprived them of all its beneficial
use and enjoyment, to entitle them to the just compensation mandated by the Constitution.
As held in Republic of the Philippines v. Castellvi, 42 there is compensable taking when the following
conditions concur: (1) the expropriator must enter a private property; (2) the entry must be for more than
a momentary period; (3) the entry must be under warrant or color of legal authority; (4) the property must
be devoted to public use or otherwise informally appropriated or injuriously affected; and (5) the utilization
of the property for public use must be in such a way as to oust the owner and deprive him of beneficial
enjoyment of the property. All these requisites are envisioned in the measures before us.
Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking
possession of the condemned property, as "the compensation is a public charge, the good faith of the
public is pledged for its payment, and all the resources of taxation may be employed in raising the
amount." 43 Nevertheless, Section 16(e) of the CARP Law provides that:
Upon receipt by the landowner of the corresponding payment or, in case of
rejection or no response from the landowner, upon the deposit with an accessible
bank designated by the DAR of the compensation in cash or in LBP bonds in
accordance with this Act, the DAR shall take immediate possession of the land and
shall request the proper Register of Deeds to issue a Transfer Certificate of Title
(TCT) in the name of the Republic of the Philippines. The DAR shall thereafter
proceed with the redistribution of the land to the qualified beneficiaries.
Objection is raised, however, to the manner of fixing the just compensation, which it is claimed is entrusted
to the administrative authorities in violation of judicial prerogatives. Specific reference is made to Section
16(d), which provides that in case of the rejection or disregard by the owner of the offer of the government
to buy his land-
... the DAR shall conduct summary administrative proceedings to determine the
compensation for the land by requiring the landowner, the LBP and other
interested parties to submit evidence as to the just compensation for the land,
within fifteen (15) days from the receipt of the notice. After the expiration of the
above period, the matter is deemed submitted for decision. The DAR shall decide
the case within thirty (30) days after it is submitted for decision.
To be sure, the determination of just compensation is a function addressed to the courts of justice and may
not be usurped by any other branch or official of the government. EPZA v. Dulay 44 resolved a challenge to
several decrees promulgated by President Marcos providing that the just compensation for property under
expropriation should be either the assessment of the property by the government or the sworn valuation
thereof by the owner, whichever was lower. In declaring these decrees unconstitutional, the Court held
through Mr. Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just compensation under the aforecited decrees
constitutes impermissible encroachment on judicial prerogatives. It tends to render
this Court inutile in a matter which under this Constitution is reserved to it for final
determination.
Thus, although in an expropriation proceeding the court technically would still have
the power to determine the just compensation for the property, following the
applicable decrees, its task would be relegated to simply stating the lower value of
the property as declared either by the owner or the assessor. As a necessary
consequence, it would be useless for the court to appoint commissioners under
Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process clause
in the taking of private property is seemingly fulfilled since it cannot be said that a
judicial proceeding was not had before the actual taking. However, the strict
application of the decrees during the proceedings would be nothing short of a
mere formality or charade as the court has only to choose between the valuation of
the owner and that of the assessor, and its choice is always limited to the lower of
the two. The court cannot exercise its discretion or independence in determining
what is just or fair. Even a grade school pupil could substitute for the judge insofar
as the determination of constitutional just compensation is concerned.
xxx
In the present petition, we are once again confronted with the same question of
whether the courts under P.D. No. 1533, which contains the same provision on just
compensation as its predecessor decrees, still have the power and authority to
determine just compensation, independent of what is stated by the decree and to
this effect, to appoint commissioners for such purpose.
This time, we answer in the affirmative.
xxx
It is violative of due process to deny the owner the opportunity to prove that the
valuation in the tax documents is unfair or wrong. And it is repulsive to the basic
concepts of justice and fairness to allow the haphazard work of a minor bureaucrat
or clerk to absolutely prevail over the judgment of a court promulgated only after
expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have been judiciously
evaluated.
A reading of the aforecited Section 16(d) will readily show that it does not suffer from the arbitrariness that
rendered the challenged decrees constitutionally objectionable. Although the proceedings are described as
summary, the landowner and other interested parties are nevertheless allowed an opportunity to submit
evidence on the real value of the property. But more importantly, the determination of the just
compensation by the DAR is not by any means final and conclusive upon the landowner or any other
interested party, for Section 16(f) clearly provides:
Any party who disagrees with the decision may bring the matter to the court of
proper jurisdiction for final determination of just compensation.
The determination made by the DAR is only preliminary unless accepted by all parties concerned.
Otherwise, the courts of justice will still have the right to review with finality the said determination in the
exercise of what is admittedly a judicial function.
The second and more serious objection to the provisions on just compensation is not as easily resolved.
This refers to Section 18 of the CARP Law providing in full as follows:
SEC. 18. Valuation and Mode of Compensation. — The LBP shall compensate the
landowner in such amount as may be agreed upon by the landowner and the DAR
and the LBP, in accordance with the criteria provided for in Sections 16 and 17, and
other pertinent provisions hereof, or as may be finally determined by the court, as
the just compensation for the land.
The compensation shall be paid in one of the following modes, at the option of the
landowner:
(1) Cash payment, under the following terms and conditions:
(a) For lands above fifty (50)
hectares, insofar as the excess
hectarage is concerned — Twenty-
five percent (25%) cash, the
balance to be paid in government
financial instruments negotiable at
any time.
(b) For lands above twenty-four
(24) hectares and up to fifty (50)
hectares — Thirty percent (30%)
cash, the balance to be paid in
government financial instruments
negotiable at any time.
(c) For lands twenty-four (24)
hectares and below — Thirty-five
percent (35%) cash, the balance to
be paid in government financial
instruments negotiable at any time.
(2) Shares of stock in government-owned or controlled corporations, LBP preferred
shares, physical assets or other qualified investments in accordance with guidelines
set by the PARC;
(3) Tax credits which can be used against any tax liability;
(4) LBP bonds, which shall have the following features:
(a) Market interest rates aligned
with 91-day treasury bill rates. Ten
percent (10%) of the face value of
the bonds shall mature every year
from the date of issuance until the
tenth (10th) year: Provided, That
should the landowner choose to
forego the cash portion, whether in
full or in part, he shall be paid
correspondingly in LBP bonds;
(b) Transferability and negotiability.
Such LBP bonds may be used by the
landowner, his successors-in-
interest or his assigns, up to the
amount of their face value, for any
of the following:
(i) Acquisition of land or other real
properties of the government,
including assets under the Asset
Privatization Program and other
assets foreclosed by government
financial institutions in the same
province or region where the lands
for which the bonds were paid are
situated;
(ii) Acquisition of shares of stock of
government-owned or controlled
corporations or shares of stock
owned by the government in
private corporations;
(iii) Substitution for surety or bail
bonds for the provisional release of
accused persons, or for
performance bonds;
(iv) Security for loans with any
government financial institution,
provided the proceeds of the loans
shall be invested in an economic
enterprise, preferably in a small
and medium- scale industry, in the
same province or region as the land
for which the bonds are paid;
(v) Payment for various taxes and
fees to government: Provided, That
the use of these bonds for these
purposes will be limited to a certain
percentage of the outstanding
balance of the financial
instruments; Provided, further,
That the PARC shall determine the
percentages mentioned above;
(vi) Payment for tuition fees of the
immediate family of the original
bondholder in government
universities, colleges, trade schools,
and other institutions;
(vii) Payment for fees of the
immediate family of the original
bondholder in government
hospitals; and
(viii) Such other uses as the PARC
may from time to time allow.
The contention of the petitioners in G.R. No. 79777 is that the above provision is unconstitutional insofar as
it requires the owners of the expropriated properties to accept just compensation therefor in less than
money, which is the only medium of payment allowed. In support of this contention, they cite
jurisprudence holding that:
The fundamental rule in expropriation matters is that the owner of the property
expropriated is entitled to a just compensation, which should be neither more nor
less, whenever it is possible to make the assessment, than the money equivalent of
said property. Just compensation has always been understood to be the just and
complete equivalent of the loss which the owner of the thing expropriated has to
suffer by reason of the expropriation . 45 (Emphasis supplied.)
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held:
It is well-settled that just compensation means the equivalent for the value of the
property at the time of its taking. Anything beyond that is more, and anything short
of that is less, than just compensation. It means a fair and full equivalent for the
loss sustained, which is the measure of the indemnity, not whatever gain would
accrue to the expropriating entity. The market value of the land taken is the just
compensation to which the owner of condemned property is entitled, the market
value being that sum of money which a person desirous, but not compelled to buy,
and an owner, willing, but not compelled to sell, would agree on as a price to be
given and received for such property. (Emphasis supplied.)
In the United States, where much of our jurisprudence on the subject has been derived, the weight of
authority is also to the effect that just compensation for property expropriated is payable only in money
and not otherwise. Thus —
The medium of payment of compensation is ready money or cash. The condemnor
cannot compel the owner to accept anything but money, nor can the owner
compel or require the condemnor to pay him on any other basis than the value of
the property in money at the time and in the manner prescribed by the
Constitution and the statutes. When the power of eminent domain is resorted to,
there must be a standard medium of payment, binding upon both parties, and the
law has fixed that standard as money in cash. 47 (Emphasis supplied.)
Part cash and deferred payments are not and cannot, in the nature of things, be
regarded as a reliable and constant standard of compensation. 48
"Just compensation" for property taken by condemnation means a fair equivalent
in money, which must be paid at least within a reasonable time after the taking,
 and it is not within the power of the Legislature to substitute for such payment
future obligations, bonds, or other valuable advantage. 49(Emphasis supplied.)
It cannot be denied from these cases that the traditional medium for the payment of just compensation is
money and no other. And so, conformably, has just compensation been paid in the past solely in that
medium. However, we do not deal here with the traditional excercise of the power of eminent domain.
This is not an ordinary expropriation where only a specific property of relatively limited area is sought to be
taken by the State from its owner for a specific and perhaps local purpose.
What we deal with here is a revolutionary kind of expropriation.
The expropriation before us affects all private agricultural lands whenever found and of whatever kind as
long as they are in excess of the maximum retention limits allowed their owners. This kind of expropriation
is intended for the benefit not only of a particular community or of a small segment of the population but
of the entire Filipino nation, from all levels of our society, from the impoverished farmer to the land-glutted
owner. Its purpose does not cover only the whole territory of this country but goes beyond in time to the
foreseeable future, which it hopes to secure and edify with the vision and the sacrifice of the present
generation of Filipinos. Generations yet to come are as involved in this program as we are today, although
hopefully only as beneficiaries of a richer and more fulfilling life we will guarantee to them tomorrow
through our thoughtfulness today. And, finally, let it not be forgotten that it is no less than the Constitution
itself that has ordained this revolution in the farms, calling for "a just distribution" among the farmers of
lands that have heretofore been the prison of their dreams but can now become the key at least to their
deliverance.
Such a program will involve not mere millions of pesos. The cost will be tremendous. Considering the vast
areas of land subject to expropriation under the laws before us, we estimate that hundreds of billions of
pesos will be needed, far more indeed than the amount of P50 billion initially appropriated, which is
already staggering as it is by our present standards. Such amount is in fact not even fully available at this
time.
We assume that the framers of the Constitution were aware of this difficulty when they called for agrarian
reform as a top priority project of the government. It is a part of this assumption that when they envisioned
the expropriation that would be needed, they also intended that the just compensation would have to be
paid not in the orthodox way but a less conventional if more practical method. There can be no doubt that
they were aware of the financial limitations of the government and had no illusions that there would be
enough money to pay in cash and in full for the lands they wanted to be distributed among the farmers.
We may therefore assume that their intention was to allow such manner of payment as is now provided for
by the CARP Law, particularly the payment of the balance (if the owner cannot be paid fully with money),
or indeed of the entire amount of the just compensation, with other things of value. We may also suppose
that what they had in mind was a similar scheme of payment as that prescribed in P.D. No. 27, which was
the law in force at the time they deliberated on the new Charter and with which they presumably agreed in
principle.
The Court has not found in the records of the Constitutional Commission any categorical agreement among
the members regarding the meaning to be given the concept of just compensation as applied to the
comprehensive agrarian reform program being contemplated. There was the suggestion to "fine tune" the
requirement to suit the demands of the project even as it was also felt that they should "leave it to
Congress" to determine how payment should be made to the landowner and reimbursement required
from the farmer-beneficiaries. Such innovations as "progressive compensation" and "State-subsidized
compensation" were also proposed. In the end, however, no special definition of the just compensation for
the lands to be expropriated was reached by the Commission. 50
On the other hand, there is nothing in the records either that militates against the assumptions we are
making of the general sentiments and intention of the members on the content and manner of the
payment to be made to the landowner in the light of the magnitude of the expenditure and the limitations
of the expropriator.
With these assumptions, the Court hereby declares that the content and manner of the just compensation
provided for in the afore- quoted Section 18 of the CARP Law is not violative of the Constitution. We do not
mind admitting that a certain degree of pragmatism has influenced our decision on this issue, but after all
this Court is not a cloistered institution removed from the realities and demands of society or oblivious to
the need for its enhancement. The Court is as acutely anxious as the rest of our people to see the goal of
agrarian reform achieved at last after the frustrations and deprivations of our peasant masses during all
these disappointing decades. We are aware that invalidation of the said section will result in the
nullification of the entire program, killing the farmer's hopes even as they approach realization and
resurrecting the spectre of discontent and dissent in the restless countryside. That is not in our view the
intention of the Constitution, and that is not what we shall decree today.
Accepting the theory that payment of the just compensation is not always required to be made fully in
money, we find further that the proportion of cash payment to the other things of value constituting the
total payment, as determined on the basis of the areas of the lands expropriated, is not unduly oppressive
upon the landowner. It is noted that the smaller the land, the bigger the payment in money, primarily
because the small landowner will be needing it more than the big landowners, who can afford a bigger
balance in bonds and other things of value. No less importantly, the government financial instruments
making up the balance of the payment are "negotiable at any time." The other modes, which are likewise
available to the landowner at his option, are also not unreasonable because payment is made in shares of
stock, LBP bonds, other properties or assets, tax credits, and other things of value equivalent to the amount
of just compensation.
Admittedly, the compensation contemplated in the law will cause the landowners, big and small, not a little
inconvenience. As already remarked, this cannot be avoided. Nevertheless, it is devoutly hoped that these
countrymen of ours, conscious as we know they are of the need for their forebearance and even sacrifice,
will not begrudge us their indispensable share in the attainment of the ideal of agrarian reform. Otherwise,
our pursuit of this elusive goal will be like the quest for the Holy Grail.
The complaint against the effects of non-registration of the land under E.O. No. 229 does not seem to be
viable any more as it appears that Section 4 of the said Order has been superseded by Section 14 of the
CARP Law. This repeats the requisites of registration as embodied in the earlier measure but does not
provide, as the latter did, that in case of failure or refusal to register the land, the valuation thereof shall be
that given by the provincial or city assessor for tax purposes. On the contrary, the CARP Law says that the
just compensation shall be ascertained on the basis of the factors mentioned in its Section 17 and in the
manner provided for in Section 16.
The last major challenge to CARP is that the landowner is divested of his property even before actual
payment to him in full of just compensation, in contravention of a well- accepted principle of eminent
domain.
The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the
expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions. Thus:
Title to property which is the subject of condemnation proceedings does not vest the condemnor until the
judgment fixing just compensation is entered and paid, but the condemnor's title relates back to the date
on which the petition under the Eminent Domain Act, or the commissioner's report under the Local
Improvement Act, is filed. 51
... although the right to appropriate and use land taken for a canal is complete at the time of entry, title to
the property taken remains in the owner until payment is actually made. 52 (Emphasis supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme Court cited several cases holding that title to property does
not pass to the condemnor until just compensation had actually been made. In fact, the decisions appear
to be uniformly to this effect. As early as 1838, in Rubottom v. McLure, 54 it was held that "actual payment
to the owner of the condemned property was a condition precedent to the investment of the title to the
property in the State" albeit "not to the appropriation of it to public use." In Rexford v. Knight, 55 the Court
of Appeals of New York said that the construction upon the statutes was that the fee did not vest in the
State until the payment of the compensation although the authority to enter upon and appropriate the
land was complete prior to the payment. Kennedy further said that "both on principle and authority the
rule is ... that the right to enter on and use the property is complete, as soon as the property is actually
appropriated under the authority of law for a public use, but that the title does not pass from the owner
without his consent, until just compensation has been made to him."
Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, 56 that:
If the laws which we have exhibited or cited in the preceding discussion are
attentively examined it will be apparent that the method of expropriation adopted
in this jurisdiction is such as to afford absolute reassurance that no piece of land
can be finally and irrevocably taken from an unwilling owner until compensation is
paid ... . (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a portion of land consisting of a family-sized farm except
that "no title to the land owned by him was to be actually issued to him unless and until he had become a
full-fledged member of a duly recognized farmers' cooperative." It was understood, however, that full
payment of the just compensation also had to be made first, conformably to the constitutional
requirement.
When E.O. No. 228, categorically stated in its Section 1 that:
All qualified farmer-beneficiaries are now deemed full owners as of October 21,
1972 of the land they acquired by virtue of Presidential Decree No. 27. (Emphasis
supplied.)
it was obviously referring to lands already validly acquired under the said decree, after proof of full-fledged
membership in the farmers' cooperatives and full payment of just compensation. Hence, it was also
perfectly proper for the Order to also provide in its Section 2 that the "lease rentals paid to the landowner
by the farmer- beneficiary after October 21, 1972 (pending transfer of ownership after full payment of just
compensation), shall be considered as advance payment for the land."
The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the
government on receipt by the landowner of the corresponding payment or the deposit by the DAR of the
compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the
landowner. 57 No outright change of ownership is contemplated either.
Hence, the argument that the assailed measures violate due process by arbitrarily transferring title before
the land is fully paid for must also be rejected.
It is worth stressing at this point that all rights acquired by the tenant-farmer under P.D. No. 27, as
recognized under E.O. No. 228, are retained by him even now under R.A. No. 6657. This should counter-
balance the express provision in Section 6 of the said law that "the landowners whose lands have been
covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them
thereunder, further, That original homestead grantees or direct compulsory heirs who still own the original
homestead at the time of the approval of this Act shall retain the same areas as long as they continue to
cultivate said homestead."
In connection with these retained rights, it does not appear in G.R. No. 78742 that the appeal filed by the
petitioners with the Office of the President has already been resolved. Although we have said that the
doctrine of exhaustion of administrative remedies need not preclude immediate resort to judicial action,
there are factual issues that have yet to be examined on the administrative level, especially the claim that
the petitioners are not covered by LOI 474 because they do not own other agricultural lands than the
subjects of their petition.
Obviously, the Court cannot resolve these issues. In any event, assuming that the petitioners have not yet
exercised their retention rights, if any, under P.D. No. 27, the Court holds that they are entitled to the new
retention rights provided for by R.A. No. 6657, which in fact are on the whole more liberal than those
granted by the decree.
V livestock, poultry and swine in its coverage (Rollo, p. 80).
The CARP Law and the other enactments also involved in these cases have been the subject of bitter attack
from those who point to the shortcomings of these measures and ask that they be scrapped entirely. To be
sure, these enactments are less than perfect; indeed, they should be continuously re-examined and
rehoned, that they may be sharper instruments for the better protection of the farmer's rights. But we
have to start somewhere. In the pursuit of agrarian reform, we do not tread on familiar ground but grope
on terrain fraught with pitfalls and expected difficulties. This is inevitable. The CARP Law is not a tried and
tested project. On the contrary, to use Justice Holmes's words, "it is an experiment, as all life is an
experiment," and so we learn as we venture forward, and, if necessary, by our own mistakes. We cannot
expect perfection although we should strive for it by all means. Meantime, we struggle as best we can in
freeing the farmer from the iron shackles that have unconscionably, and for so long, fettered his soul to the
soil.
By the decision we reach today, all major legal obstacles to the comprehensive agrarian reform program
are removed, to clear the way for the true freedom of the farmer. We may now glimpse the day he will be
released not only from want but also from the exploitation and disdain of the past and from his own
feelings of inadequacy and helplessness. At last his servitude will be ended forever. At last the farm on
which he toils will be his farm. It will be his portion of the Mother Earth that will give him not only the staff
of life but also the joy of living. And where once it bred for him only deep despair, now can he see in it the
fruition of his hopes for a more fulfilling future. Now at last can he banish from his small plot of earth his
insecurities and dark resentments and "rebuild in it the music and the dream."
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos. 228 and 229 are
SUSTAINED against all the constitutional objections raised in the herein petitions.
2. Title to all expropriated properties shall be transferred to the State only upon full
payment of compensation to their respective owners.
3. All rights previously acquired by the tenant- farmers under P.D. No. 27 are
retained and recognized.
4. Landowners who were unable to exercise their rights of retention under P.D. No.
27 shall enjoy the retention rights granted by R.A. No. 6657 under the conditions
therein prescribed.
5. Subject to the above-mentioned rulings all the petitions are DISMISSED, without
pronouncement as to costs.
SO ORDERED.
[G.R. No. 86889 : December 4, 1990.]
192 SCRA 51
LUZ FARMS, Petitioner, vs. THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM,
Respondent.
DECISION
PARAS, J.:
This is a petition for prohibition with prayer for restraining order and/or preliminary and permanent
injunction against the Honorable Secretary of the Department of Agrarian Reform for acting without
jurisdiction in enforcing the assailed provisions of R.A. No. 6657, otherwise known as the Comprehensive
Agrarian Reform Law of 1988 and in promulgating the Guidelines and Procedure Implementing Production
and Profit Sharing under R.A. No. 6657, insofar as the same apply to herein petitioner, and further from
performing an act in violation of the constitutional rights of the petitioner.
As gathered from the records, the factual background of this case, is as follows:
On June 10, 1988, the President of the Philippines approved R.A. No. 6657, which includes the raising of
On January 2, 1989, the Secretary of Agrarian Reform promulgated the Guidelines and Procedures
Implementing Production and Profit Sharing as embodied in Sections 13 and 32 of R.A. No. 6657 (Rollo, p.
80).
On January 9, 1989, the Secretary of Agrarian Reform promulgated its Rules and Regulations implementing
Section 11 of R.A. No. 6657 (Commercial Farms). (Rollo, p. 81).
Luz Farms, petitioner in this case, is a corporation engaged in the livestock and poultry business and
together with others in the same business allegedly stands to be adversely affected by the enforcement of
Section 3(b), Section 11, Section 13, Section 16(d) and 17 and Section 32 of R.A. No. 6657 otherwise known
as Comprehensive Agrarian Reform Law and of the Guidelines and Procedures Implementing Production
and Profit Sharing under R.A. No. 6657 promulgated on January 2, 1989 and the Rules and Regulations
Implementing Section 11 thereof as promulgated by the DAR on January 9, 1989 (Rollo, pp. 2-36).: rd
Hence, this petition praying that aforesaid laws, guidelines and rules be declared unconstitutional.
Meanwhile, it is also prayed that a writ of preliminary injunction or restraining order be issued enjoining
public respondents from enforcing the same, insofar as they are made to apply to Luz Farms and other
livestock and poultry raisers.
This Court in its Resolution dated July 4, 1939 resolved to deny, among others, Luz Farms' prayer for the
issuance of a preliminary injunction in its Manifestation dated May 26, and 31, 1989. (Rollo, p. 98).
Later, however, this Court in its Resolution dated August 24, 1989 resolved to grant said Motion for
Reconsideration regarding the injunctive relief, after the filing and approval by this Court of an injunction
bond in the amount of P100,000.00. This Court also gave due course to the petition and required the
parties to file their respective memoranda (Rollo, p. 119).
The petitioner filed its Memorandum on September 6, 1989 (Rollo, pp. 131-168).
On December 22, 1989, the Solicitor General adopted his Comment to the petition as his Memorandum
(Rollo, pp. 186-187).
Luz Farms questions the following provisions of R.A. 6657, insofar as they are made to apply to it:
(a) Section 3(b) which includes the "raising of livestock (and poultry)" in the definition of
"Agricultural, Agricultural Enterprise or Agricultural Activity."
(b) Section 11 which defines "commercial farms" as "private agricultural lands devoted to
commercial, livestock, poultry and swine raising . . ."
(c) Section 13 which calls upon petitioner to execute a production-sharing plan.
(d) Section 16(d) and 17 which vest on the Department of Agrarian Reform the authority to
summarily determine the just compensation to be paid for lands covered by the
Comprehensive Agrarian Reform Law.
(e) Section 32 which spells out the production-sharing plan mentioned in Section 13 —
". . . (W)hereby three percent (3%) of the gross sales from the production of such lands are
distributed within sixty (60) days of the end of the fiscal year as compensation to regular and
other farmworkers in such lands over and above the compensation they currently receive:
Provided, That these individuals or entities realize gross sales in excess of five million pesos per
annum unless the DAR, upon proper application, determine a lower ceiling.
In the event that the individual or entity realizes a profit, an additional ten (10%) of the net
profit after tax shall be distributed to said regular and other farmworkers within ninety (90)
days of the end of the fiscal year . . ."
The main issue in this petition is the constitutionality of Sections 3(b), 11, 13 and 32 of R.A. No. 6657 (the
Comprehensive Agrarian Reform Law of 1988), insofar as the said law includes the raising of livestock,
poultry and swine in its coverage as well as the Implementing Rules and Guidelines promulgated in
accordance therewith.:-cralaw
The constitutional provision under consideration reads as follows:
ARTICLE XIII
x x x
AGRARIAN AND NATURAL RESOURCES REFORM
Section 4. The State shall, by law, undertake an agrarian reform program founded on the right
of farmers and regular farmworkers, who are landless, to own directly or collectively the lands
they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this
end, the State shall encourage and undertake the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits as the Congress may prescribe, taking
into account ecological, developmental, or equity considerations, and subject to the payment
of just compensation. In determining retention limits, the State shall respect the rights of small
landowners. The State shall further provide incentives for voluntary land-sharing.
x x x"
Luz Farms contended that it does not seek the nullification of R.A. 6657 in its entirety. In fact, it
acknowledges the correctness of the decision of this Court in the case of the Association of
Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform (G.R. 78742, 14 July
1989) affirming the constitutionality of the Comprehensive Agrarian Reform Law. It, however,
argued that Congress in enacting the said law has transcended the mandate of the
Constitution, in including land devoted to the raising of livestock, poultry and swine in its
coverage (Rollo, p. 131). Livestock or poultry raising is not similar to crop or tree farming. Land
is not the primary resource in this undertaking and represents no more than five percent (5%)
of the total investment of commercial livestock and poultry raisers. Indeed, there are many
owners of residential lands all over the country who use available space in their residence for
commercial livestock and raising purposes, under "contract-growing arrangements," whereby
processing corporations and other commercial livestock and poultry raisers (Rollo, p. 10). Lands
support the buildings and other amenities attendant to the raising of animals and birds. The
use of land is incidental to but not the principal factor or consideration in productivity in this
industry. Including backyard raisers, about 80% of those in commercial livestock and poultry
production occupy five hectares or less. The remaining 20% are mostly corporate farms (Rollo,
p. 11).
On the other hand, the public respondent argued that livestock and poultry raising is embraced in the term
"agriculture" and the inclusion of such enterprise under Section 3(b) of R.A. 6657 is proper. He cited that
Webster's International Dictionary, Second Edition (1954), defines the following words:
"Agriculture — the art or science of cultivating the ground and raising and harvesting crops,
often, including also, feeding, breeding and management of livestock, tillage, husbandry,
farming.
It includes farming, horticulture, forestry, dairying, sugarmaking . . .
Livestock — domestic animals used or raised on a farm, especially for profit.
Farm — a plot or tract of land devoted to the raising of domestic or other animals." (Rollo, pp. 82-83).
The petition is impressed with merit.
The question raised is one of constitutional construction. The primary task in constitutional construction is
to ascertain and thereafter assure the realization of the purpose of the framers in the adoption of the
Constitution (J.M. Tuazon & Co. vs. Land Tenure Administration, 31 SCRA 413 [1970]).: rd
Ascertainment of the meaning of the provision of Constitution begins with the language of the document
itself. The words used in the Constitution are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails (J.M. Tuazon & Co.
vs. Land Tenure Administration, 31 SCRA 413 [1970]).
It is generally held that, in construing constitutional provisions which are ambiguous or of doubtful
meaning, the courts may consider the debates in the constitutional convention as throwing light on the
intent of the framers of the Constitution. It is true that the intent of the convention is not controlling by
itself, but as its proceeding was preliminary to the adoption by the people of the Constitution the
understanding of the convention as to what was meant by the terms of the constitutional provision which
was the subject of the deliberation, goes a long way toward explaining the understanding of the people
when they ratified it (Aquino, Jr. v. Enrile, 59 SCRA 183 [1974]).
The transcripts of the deliberations of the Constitutional Commission of 1986 on the meaning of the word
"agricultural," clearly show that it was never the intention of the framers of the Constitution to include
livestock and poultry industry in the coverage of the constitutionally-mandated agrarian reform program of
the Government.
The Committee adopted the definition of "agricultural land" as defined under Section 166 of R.A. 3844, as
laud devoted to any growth, including but not limited to crop lands, saltbeds, fishponds, idle and
abandoned land (Record, CONCOM, August 7, 1986, Vol. III, p. 11).
The intention of the Committee is to limit the application of the word "agriculture." Commissioner Jamir
proposed to insert the word "ARABLE" to distinguish this kind of agricultural land from such lands as
commercial and industrial lands and residential properties because all of them fall under the general
classification of the word "agricultural". This proposal, however, was not considered because the
Committee contemplated that agricultural lands are limited to arable and suitable agricultural lands and
therefore, do not include commercial, industrial and residential lands (Record, CONCOM, August 7, 1986,
Vol. III, p. 30).
In the interpellation, then Commissioner Regalado (now a Supreme Court Justice), posed several questions,
among others, quoted as follows:
x x x
"Line 19 refers to genuine reform program founded on the primary right of farmers and
farmworkers. I wonder if it means that leasehold tenancy is thereby proscribed under this
provision because it speaks of the primary right of farmers and farmworkers to own directly or
collectively the lands they till. As also mentioned by Commissioner Tadeo, farmworkers include
those who work in piggeries and poultry projects.
I was wondering whether I am wrong in my appreciation that if somebody puts up a piggery or
a poultry project and for that purpose hires farmworkers therein, these farmworkers will
automatically have the right to own eventually, directly or ultimately or collectively, the land on
which the piggeries and poultry projects were constructed. (Record, CONCOM, August 2, 1986,
p. 618).
x x x
The questions were answered and explained in the statement of then Commissioner Tadeo,
quoted as follows:
x x x
"Sa pangalawang katanungan ng Ginoo ay medyo hindi kami nagkaunawaan. Ipinaaalam ko kay
Commissioner Regalado na hindi namin inilagay ang agricultural worker sa kadahilanang
kasama rito ang piggery, poultry at livestock workers. Ang inilagay namin dito ay farm worker
kaya hindi kasama ang piggery, poultry at livestock workers (Record, CONCOM, August 2, 1986,
Vol. II, p. 621).
It is evident from the foregoing discussion that Section II of R.A. 6657 which includes "private agricultural
lands devoted to commercial livestock, poultry and swine raising" in the definition of "commercial farms" is
invalid, to the extent that the aforecited agro-industrial activities are made to be covered by the agrarian
reform program of the State. There is simply no reason to include livestock and poultry lands in the
coverage of agrarian reform. (Rollo, p. 21).
Hence, there is merit in Luz Farms' argument that the requirement in Sections 13 and 32 of R.A. 6657
directing "corporate farms" which include livestock and poultry raisers to execute and implement
"production-sharing plans" (pending final redistribution of their landholdings) whereby they are called
upon to distribute from three percent (3%) of their gross sales and ten percent (10%) of their net profits to
their workers as additional compensation is unreasonable for being confiscatory, and therefore violative of
due process (Rollo, p. 21).:-cralaw
It has been established that this Court will assume jurisdiction over a constitutional question only if it is
shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there
must be an actual case or controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by the proper party, and the
resolution of the question is unavoidably necessary to the decision of the case itself (Association of Small
Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. 78742; Acuna v. Arroyo, G.R.
79310; Pabico v. Juico, G.R. 79744; Manaay v. Juico, G.R. 79777, 14 July 1989, 175 SCRA 343).
However, despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will
not hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to probe
its meaning and discover its purpose. Personal motives and political considerations are irrelevancies that
cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of
the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts
of these departments, or of any official, betray the people's will as expressed in the Constitution
(Association of Small Landowners of the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. 78742; Acuna
v. Arroyo, G.R. 79310; Pabico v. Juico, G.R. 79744; Manaay v. Juico, G.R. 79777, 14 July 1989).
Thus, where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes
the duty of the judiciary to declare what the other branches of the government had assumed to do, as void.
This is the essence of judicial power conferred by the Constitution "(I)n one Supreme Court and in such
lower courts as may be established by law" (Art. VIII, Section 1 of the 1935 Constitution; Article X, Section I
of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Article VIII,
Section 1 of the 1987 Constitution) and which power this Court has exercised in many instances (Demetria
v. Alba, 148 SCRA 208 [1987]).
PREMISES CONSIDERED, the instant petition is hereby GRANTED. Sections 3(b), 11, 13 and 32 of R.A. No.
6657 insofar as the inclusion of the raising of livestock, poultry and swine in its coverage as well as the
Implementing Rules and Guidelines promulgated in accordance therewith, are hereby DECLARED null and
void for being unconstitutional and the writ of preliminary injunction issued is hereby MADE permanent.
SO ORDERED.
G.R. No. 91649 May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO
SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the
Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It
waived the Manila City government's right to impose taxes and license fees, which is
recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded
into the local government's right to impose local taxes and license fees. This, in contravention
of the constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR —
conducted gambling, while most other forms of gambling are outlawed, together with
prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and crony
economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national
policy of the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The
decree is said to have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article
II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended
Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being
also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated
January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish,
operate and maintain gambling casinos on land or water within the territorial jurisdiction of the
Philippines." Its operation was originally conducted in the well known floating casino "Philippine Tourist."
The operation was considered a success for it proved to be a potential source of revenue to fund
infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to
fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to
regulate and centralize all games of chance authorized by existing franchise or permitted by law, under the
following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State to centralize
and integrate all games of chance not heretofore authorized by existing franchises or permitted
by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of chance
into one corporate entity to be controlled, administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation, including sports
gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and
recreation including games of chance, which may be allowed by law within the territorial
jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to fund
infrastructure and socio-civic projects, such as flood control programs, beautification, sewerage
and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and
such other essential public services; (2) create recreation and integrated facilities which will
expand and improve the country's existing tourist attractions; and (3) minimize, if not totally
eradicate, all the evils, malpractices and corruptions that are normally prevalent on the
conduct and operation of gambling clubs and casinos without direct government involvement.
(Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its
Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith,
are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of
Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's income
share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-
cultural and charitable projects on its own or in cooperation with various governmental agencies, and other
private associations and organizations. In its 3 1/2 years of operation under the present administration,
PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four
Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and
void" for being "contrary to morals, public policy and public order," monopolistic and tends toward "crony
economy", and is violative of the equal protection clause and local autonomy as well as for running counter
to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13
(Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what has been described as "the highest and
most delicate function which belongs to the judicial department of the government." (State v. Manuel, 20
N.C. 144; Lozano v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
government We need not be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is clear
that the legislature or the executive for that matter, has over-stepped the limits of its authority under the
constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending
statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar
underscored the —
. . . thoroughly established principle which must be followed in all cases where questions of
constitutionality as obtain in the instant cases are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute, it
will be upheld and the challenger must negate all possible basis; that the courts are not
concerned with the wisdom, justice, policy or expediency of a statute and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be
adopted. (Danner v. Hass, 194 N.W. 2nd534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663;
59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on
Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983]
cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521,
540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality of
petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty,
under the 1987 Constitution, to determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this
petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us, We
hold that the same is satisfied by the petitioners and intervenors because each of them has
sustained or is in danger of sustaining an immediate injury as a result of the acts or measures
complained of. And even if, strictly speaking they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders issued by President Quirino although they were
involving only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled that "the transcendental
importance to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must technicalities of procedure." We have since then applied the
exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec.
of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling
does not mean that the Government cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint
upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but
has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Philippine
Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could
be done, provides enough room for an efficient and flexible response to conditions and circumstances thus
assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty.
It is a fundamental attribute of government that has enabled it to perform the most vital functions of
governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary
power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police
power of the State is a power co-extensive with self-protection and is most aptly termed the "law of
overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that
enables the state to meet the agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an
appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations in
one corporate entity — the PAGCOR, was beneficial not just to the Government but to society in general. It
is a reliable source of much needed revenue for the cash strapped Government. It provided funds for social
impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of
the Government, the evil practices and corruptions that go with gambling will be minimized if not totally
eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes
and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They
must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from
paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever
nature, whether National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or
otherwise as well as fees, charges or levies of whatever nature, whether National or Local, shall
be assessed and collected under this franchise from the Corporation; nor shall any form or tax
or charge attach in any way to the earnings of the Corporation, except a franchise tax of five
(5%) percent of the gross revenues or earnings derived by the Corporation from its operations
under this franchise. Such tax shall be due and payable quarterly to the National Government
and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or
description, levied, established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v.
City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7
SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the
municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must
always yield to a legislative act which is superior having been passed upon by the state itself which has the
"inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal
corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has
the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion
v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control
over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City
of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975,
the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was
withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities
and other local governments to issue license, permit or other form of franchise to operate,
maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby
revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog
race tracks, jai-alai and other forms of gambling shall be issued by the national government
upon proper application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the operation of
gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance
of "licenses or permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the affiliated entities,
and shall exercise all the powers, authority and the responsibilities vested in the Securities and
Exchange Commission over such affiliating entities mentioned under the preceding section,
including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in
corporate term, structure, capitalization and other matters concerning the operation of the
affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary
notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental,
which places it in the category of an agency or instrumentality of the Government. Being an instrumentality
of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation
might be burdened, impeded or subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any manner
control the operation of constitutional laws enacted by Congress to carry into execution the
powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of
power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of
the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way as to prevent it from
consummating its federal responsibilities, or even to seriously burden it in the accomplishment
of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for
regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v.
Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has
the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869.
This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of revenue
and to levy taxes, fees, and other charges subject to such guidelines and limitation as the
congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and
charges shall accrue exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which
Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or
revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the
exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but
rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III
Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs. In a unitary system of
government, such as the government under the Philippine Constitution, local governments can
only be an intra sovereign subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system can only mean a measure of
decentralization of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local government units
remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for
Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern
and hence, it is the sole prerogative of the State to retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or express charter power is
generally necessary to empower the local corporation to deal with the subject. . . . In the
absence of express grant of power to enact, ordinance provisions on this subject which are
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte
Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St.
Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it
legalized PAGCOR — conducted gambling, while most gambling are outlawed together with prostitution,
drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-
accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification
of individuals who may be accorded different treatment under the law as long as the classification is not
unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal
force on all persons or things to be conformable to Article III, Section 1 of the Constitution (DECS v. San
Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or
objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in law as though they were the same
(Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not
clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by
B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the applicable
laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there
are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all occupations called
by the same name must be treated the same way; the state may do what it can to prevent
which is deemed as evil and stop short of those cases in which harm to the few concerned is
not less than the harm to the public that would insure if the rule laid down were made
mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from
monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is
not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's
policies then it is for the Executive Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and not
what the law should be.1âwphi1 Under our system of government, policy issues are within the
domain of the political branches of government and of the people themselves as the repository
of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National
Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the
Constitution. The state must still decide whether public interest demands that monopolies be regulated or
prohibited. Again, this is a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role
of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article
XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and,
policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to
clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and the legislature. If the executive and the legislature failed to heed the directives of
the articles the available remedy was not judicial or political. The electorate could express their
displeasure with the failure of the executive and the legislature through the language of the
ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v.
Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD
1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not
merely a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond
reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition
must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869, the
Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is
therefore, inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of
"morality, monopoly, trend to free enterprise, privatization as well as the state principles on social justice,
role of youth and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its
favor the presumption of validity and constitutionality which petitioners Valmonte and the
KMU have not overturned. Petitioners have not undertaken to identify the provisions in the
Constitution which they claim to have been violated by that statute. This Court, however, is not
compelled to speculate and to imagine how the assailed legislation may possibly offend some
provision of the Constitution. The Court notes, further, in this respect that petitioners have in
 the main put in question the wisdom, justice and expediency of the establishment of the OPSF,
issues which are not properly addressed to this Court and which this Court may not
constitutionally pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the
gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social, and spiritual outlook on life.
However, the mere fact that some persons may have lost their material fortunes, mental control, physical
health, or even their lives does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 125350 December 3, 2002
HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28),
ULRIC R. CAÑETE (Presiding Judge, Branch 25),
AGUSTINE R. VESTIL (Presiding Judge, Branch 56),
HON. MTC JUDGES TEMISTOCLES M. BOHOLST (Presiding Judge, Branch 1),
VICENTE C. FANILAG (Judge Designate, Branch 2),
and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of Mandaue City, petitioners,
vs.
COMMISSION ON AUDIT, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 64 to annul the decision1 and resolution2, dated September
21, 1995 and May 28, 1996, respectively, of the respondent Commission on Audit (COA) affirming the
notices of the Mandaue City Auditor which diminished the monthly additional allowances received by the
petitioner judges of the Regional Trial Court (RTC) and Municipal Trial Court (MTC) stationed in Mandaue
City.
The undisputed facts are as follows:
In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances of P1,260 each
through the yearly appropriation ordinance enacted by the Sangguniang Panlungsod of the said city. In
1991, Mandaue City increased the amount to P1,500 for each judge.
On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed Local Budget
Circular No. 55 (LBC 55) which provided that:
"x x x xxx xxx
2.3.2. In the light of the authority granted to the local government units under the Local
Government Code to provide for additional allowances and other benefits to national
government officials and employees assigned in their locality, such additional allowances in the
form of honorarium at rates not exceeding P1,000.00 in provinces and cities and P700.00 in
municipalities may be granted subject to the following conditions:
a) That the grant is not mandatory on the part of the LGUs;
b) That all contractual and statutory obligations of the LGU including the implementation of
R.A. 6758 shall have been fully provided in the budget;
c) That the budgetary requirements/limitations under Section 324 and 325 of R.A. 7160 should
be satisfied and/or complied with; and
d) That the LGU has fully implemented the devolution of functions/personnel in accordance
with R.A. 7160.3" (italics supplied)
xxx xxx xxx
The said circular likewise provided for its immediate effectivity without need of publication:
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to herein
petitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R. Cañete, Agustin R. Vestil,
Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag and Wilfredo A. Dagatan, in excess of the
amount authorized by LBC 55. Beginning October, 1994, the additional monthly allowances of the
petitioner judges were reduced to P1,000 each. They were also asked to reimburse the amount they
received in excess of P1,000 from April to September, 1994.
The petitioner judges filed with the Office of the City Auditor a protest against the notices of disallowance.
But the City Auditor treated the protest as a motion for reconsideration and indorsed the same to the COA
Regional Office No. 7. In turn, the COA Regional Office referred the motion to the head office with a
recommendation that the same be denied.
On September 21, 1995, respondent COA rendered a decision denying petitioners' motion for
reconsideration. The COA held that:
The issue to be resolved in the instant appeal is whether or not the City Ordinance of Mandaue which
provides a higher rate of allowances to the appellant judges may prevail over that fixed by the DBM under
Local Budget Circular No. 55 dated March 15, 1994.
xxx xxx xxx
Applying the foregoing doctrine, appropriation ordinance of local government units is subject to the
organizational, budgetary and compensation policies of budgetary authorities (COA 5th Ind., dated March
17, 1994 re: Province of Antique; COA letter dated May 17, 1994 re: Request of Hon. Renato Leviste, Cong.
1st Dist. Oriental Mindoro). In this regard, attention is invited to Administrative Order No. 42 issued on
March 3, 1993 by the President of the Philippines clarifying the role of DBM in the compensation and
classification of local government positions under RA No. 7160 vis-avis the provisions of RA No. 6758 in
view of the abolition of the JCLGPA. Section 1 of said Administrative Order provides that:
"Section 1. The Department of Budget and Management as the lead administrator of RA No.
6758 shall, through its Compensation and Position Classification Bureau, continue to have the
following responsibilities in connection with the implementation of the Local Government Code
of 1991:
a) Provide guidelines on the classification of local government positions and on the
specific rates of pay therefore;
b) Provide criteria and guidelines for the grant of
all allowances and additional forms of compensation to local government
employees; xxx." (underscoring supplied)
To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated March 15, 1994,
whose effectivity clause provides that:
xxx xxx xxx
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
It is a well-settled rule that implementing rules and regulations promulgated by administrative or executive
officer in accordance with, and as authorized by law, has the force and effect of law or partake the nature
of a statute (Victorias Milling Co., Inc., vs. Social Security Commission, 114 Phil. 555, cited in Agpalo's
Statutory Construction, 2nd Ed. P. 16; Justice Cruz's Phil. Political Law, 1984 Ed., p. 103; Espanol vs. Phil
Veterans Administration, 137 SCRA 314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).
xxx xxx xxx
There being no statutory basis to grant additional allowance to judges in excess of P1,000.00 chargeable
against the local government units where they are stationed, this Commission finds no substantial grounds
or cogent reason to disturb the decision of the City Auditor, Mandaue City, disallowing in audit the
allowances in question. Accordingly, the above-captioned appeal of the MTC and RTC Judges of Mandaue
City, insofar as the same is not covered by Circular Letter No. 91-7, is hereby dismissed for lack of merit.
xxx xxx x x x4
On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the petitioner judges,
filed a motion for reconsideration of the decision of the COA. In a resolution dated May 28, 1996, the COA
denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the following questions for
resolution:
I RA 7160, which authorizes the disbursement of additional allowances and other benefits to judges subject
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO PROVIDE ADDITIONAL
ALLOWANCES AND OTHER BENEFITS TO JUDGES STATIONED IN AND ASSIGNED TO THE CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET CIRCULAR NO. 55 RENDER
INOPERATIVE THE POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING A LIMIT TO THE EXTENT OF
THE EXERCISE OF SUCH POWER?
III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET CIRCULAR NO. 55 TO INCLUDE
MEMBERS OF THE JUDICIARY IN FIXING THE CEILING OF ADDITIONAL ALLOWANCES AND BENEFITS TO BE
PROVIDED TO JUDGES STATIONED IN AND ASSIGNED TO MANDAUE CITY BY THE CITY GOVERNMENT AT
P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE BEEN RECEIVING ALLOWANCES OF
P1,500.00 MONTHLY FOR THE PAST FIVE YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE DEPARTMENT OF BUDGET
AND MANAGEMENT VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOT DULY PUBLISHED IN
ACCODANCE WITH LAW?5
Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue City by
dictating a uniform amount that a local government unit can disburse as additional allowances to judges
stationed therein. They maintain that said circular is not supported by any law and therefore goes beyond
the supervisory powers of the President. They further allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for additional allowances to judges is
allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the Local Government Code of
1991, which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. – (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare
of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and
in this connection, shall:
xxx xxx xxx
(xi) When the finances of the city government allow, provide for additional allowances and other benefits to
judges, prosecutors, public elementary and high school teachers, and other national government officials
stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a manifestation
supporting the position of the petitioner judges. The Solicitor General argues that (1) DBM only enjoys the
power to review and determine whether the disbursements of funds were made in accordance with the
ordinance passed by a local government unit while (2) the COA has no more than auditorial visitation
powers over local government units pursuant to Section 348 of RA 7160 which provides for the power to
inspect at any time the financial accounts of local government units.
Moreover, the Solicitor General opines that "the DBM and the respondent are only authorized under RA
7160 to promulgate a Budget Operations Manual for local government units, to improve and systematize
methods, techniques and procedures employed in budget preparation, authorization, execution and
accountability" pursuant to Section 354 of RA 7160. The Solicitor General points out that LBC 55 was not
exercised under any of the aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and statutory authority of a city
government to provide allowances to judges stationed therein is not absolute. Congress may set limitations
on the exercise of autonomy. It is for the President, through the DBM, to check whether these legislative
limitations are being followed by the local government units.
One such law imposing a limitation on a local government unit's autonomy is Section 458, par. (a) (1) [xi], of
to the condition that the finances of the city government should allow the same. Thus, DBM is merely
enforcing the condition of the law when it sets a uniform maximum amount for the additional allowances
that a city government can release to judges stationed therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions of the yearly
approved ordinance granting additional allowances to judges are still prohibited by the appropriation laws
passed by Congress every year. COA argues that Mandaue City gets the funds for the said additional
allowances of judges from the Internal Revenue Allotment (IRA). But the General Appropriations Acts of
1994 and 1995 do not mention the disbursement of additional allowances to judges as one of the
allowable uses of the IRA. Hence, the provisions of said ordinance granting additional allowances, taken
from the IRA, to herein petitioner judges are void for being contrary to law.
To resolve the instant petition, there are two issues that we must address: (1) whether LBC 55 of the DBM
is void for going beyond the supervisory powers of the President and for not having been published and (2)
whether the yearly appropriation ordinance enacted by the City of Mandaue that provides for additional
allowances to judges contravenes the annual appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution6 guarantees autonomy to local government units, the
exercise of local autonomy remains subject to the power of control by Congress and the power of
supervision by the President. Section 4 of Article X of the 1987 Philippine Constitution provides that:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x
In Pimentel vs. Aguirre7, we defined the supervisory power of the President and distinguished it from the
power of control exercised by Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been interpreted to exclude
the power of control. In Mondano v. Silvosa,i 5 the Court contrasted the President's power of supervision
over local government officials with that of his power of control over executive officials of the national
government. It was emphasized that the two terms -- supervision and control -- differed in meaning and
extent. The Court distinguished them as follows:
"x x x In administrative law, supervision means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may
take such action or step as prescribed by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer
ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the
latter."ii 6
In Taule v. Santos,iii 7 we further stated that the Chief Executive wielded no more authority than that of
checking whether local governments or their officials were performing their duties as provided by the
fundamental law and by statutes. He cannot interfere with local governments, so long as they act within
the scope of their authority. "Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining authority over such body," iv 8 we said.
In a more recent case, Drilon v. Lim,v 9 the difference between control and supervision was further
delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If these
rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates
or even decide to do it themselves. On the other hand, supervision does not cover such authority.
Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may
order the work done or redone, but only to conform to such rules. They may not prescribe their own
manner of execution of the act. They have no discretion on this matter except to see to it that the rules are
followed.
Under our present system of government, executive power is vested in the President.vi10 The members of
the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of
control of the President, at whose will and behest they can be removed from office; or their actions and
decisions changed, suspended or reversed.vii 11 In contrast, the heads of political subdivisions are elected by
the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable.
By constitutional fiat, they are subject to the President's supervision only, not control, so long as their acts
are exercised within the sphere of their legitimate powers. By the same token, the President may not
withhold or alter any authority or power given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities of a local government unit if he or
she finds that the latter has acted contrary to law. This is the scope of the President's supervisory powers
over local government units. Hence, the President or any of his or her alter egos cannot interfere in local
affairs as long as the concerned local government unit acts within the parameters of the law and the
Constitution. Any directive therefore by the President or any of his or her alter egos seeking to alter the
wisdom of a law-conforming judgment on local affairs of a local government unit is a patent nullity because
it violates the principle of local autonomy and separation of powers of the executive and legislative
departments in governing municipal corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a local government unit should not
exceed P1,000 in provinces and cities and P700 in municipalities. Section 458, par. (a)(1)(xi), of RA 7160,
the law that supposedly serves as the legal basis of LBC 55, allows the grant of additional allowances to
judges "when the finances of the city government allow." The said provision does not authorize setting a
definite maximum limit to the additional allowances granted to judges. Thus, we need not belabor the
point that the finances of a city government may allow the grant of additional allowances higher
than P1,000 if the revenues of the said city government exceed its annual expenditures. Thus, to illustrate,
a city government with locally generated annual revenues of P40 million and expenditures of P35 million
can afford to grant additional allowances of more than P1,000 each to, say, ten judges inasmuch as the
finances of the city can afford it.
Setting a uniform amount for the grant of additional allowances is an inappropriate way of enforcing the
criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-stepped its power of supervision
over local government units by imposing a prohibition that did not correspond with the law it sought to
implement. In other words, the prohibitory nature of the circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling in Tañada vs.
Tuvera8where we held that:
xxx. Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of an
administrative agency and the public, need not be published. Neither is publication required of the so-
called letters of instruction issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.
Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely an
interpretative regulation applicable to the personnel of an LGU. We disagree. In De Jesus vs. Commission on
Audit9 where we dealt with the same issue, this Court declared void, for lack of publication, a DBM circular
that disallowed payment of allowances and other additional compensation to government officials and
employees. In refuting respondent COA's argument that said circular was merely an internal regulation, we
ruled that:
On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative. Following the doctrine
enunciated in Tañada v. Tuvera, publication in the Official Gazette or in a newspaper of general circulation
in the Philippines is required since DBM-CCC No. 10 is in the nature of an administrative circular the purpose
of which is to enforce or implement an existing law. Stated differently, to be effective and enforceable,
DBM-CCC No. 10 must go through the requisite publication in the Official Gazette or in a newspaper of
general circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completely disallows
payment of allowances and other additional compensation to government officials and employees, starting
November 1, 1989, is not a mere interpretative or internal regulation. It is something more than that. And
why not, when it tends to deprive government workers of their allowance and additional compensation
sorely needed to keep body and soul together. At the very least, before the said circular under attack may
be permitted to substantially reduce their income, the government officials and employees concerned should
be apprised and alerted by the publication of subject circular in the Official Gazette or in a newspaper of
general circulation in the Philippines – to the end that they be given amplest opportunity to voice out
whatever opposition they may have, and to ventilate their stance on the matter. This approach is more in
keeping with democratic precepts and rudiments of fairness and transparency. (emphasis supplied)
In Philippine International Trading Corporation vs. Commission on Audit10, we again declared the same
circular as void, for lack of publication, despite the fact that it was re-issued and then submitted for
publication. Emphasizing the importance of publication to the effectivity of a regulation, we therein held
that:
It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and submitted for
publication in the Official Gazette per letter to the National Printing Office dated March 9, 1999. Would the
subsequent publication thereof cure the defect and retroact to the time that the above-mentioned items
were disallowed in audit?
The answer is in the negative, precisely for the reason that publication is required as a condition
precedent to the effectivity of a law to inform the public of the contents of the law or rules and regulations
before their rights and interests are affected by the same. From the time the COA disallowed the expenses
in audit up to the filing of herein petition the subject circular remained in legal limbo due to its non-
publication. As was stated in Tañada v. Tuvera, "prior publication of laws before they become effective
cannot be dispensed with, for the reason that it would deny the public knowledge of the laws that are
supposed to govern it."11
We now resolve the second issue of whether the yearly appropriation ordinance enacted by Mandaue City
providing for fixed allowances for judges contravenes any law and should therefore be struck down as null
and void.
According to respondent COA, even if LBC 55 were void, the ordinances enacted by Mandaue City granting
additional allowances to the petitioner judges would "still (be) bereft of legal basis for want of a lawful
source of funds considering that the IRA cannot be used for such purposes." Respondent COA showed that
Mandaue City's funds consisted of locally generated revenues and the IRA. From 1989 to 1995, Mandaue
City's yearly expenditures exceeded its locally generated revenues, thus resulting in a deficit. During all
those years, it was the IRA that enabled Mandaue City to incur a surplus. Respondent avers that Mandaue
City used its IRA to pay for said additional allowances and this violated paragraph 2 of the Special
Provisions, page 1060, of RA 7845 (The General Appropriations Act of 1995)12 and paragraph 3 of the
Special Provision, page 1225, of RA 7663 (The General Appropriations Act of 1994) 13 which specifically
identified the objects of expenditure of the IRA. Nowhere in said provisions of the two budgetary laws does
it say that the IRA can be used for additional allowances of judges. Respondent COA thus argues that the
provisions in the ordinance providing for such disbursement are against the law, considering that the grant
of the subject allowances is not within the specified use allowed by the aforesaid yearly appropriations
acts.
We disagree.
Respondent COA failed to prove that Mandaue City used the IRA to spend for the additional allowances of
the judges. There was no evidence submitted by COA showing the breakdown of the expenses of the city
government and the funds used for said expenses. All the COA presented were the amounts expended, the
locally generated revenues, the deficit, the surplus and the IRA received each year. Aside from these items,
no data or figures were presented to show that Mandaue City deducted the subject allowances from the
IRA. In other words, just because Mandaue City's locally generated revenues were not enough to cover its
expenditures, this did not mean that the additional allowances of petitioner judges were taken from the
IRA and not from the city's own revenues.
Moreover, the DBM neither conducted a formal review nor ordered a disapproval of Mandaue City's
appropriation ordinances, in accordance with the procedure outlined by Sections 326 and 327 of RA 7160
which provide that:
Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Municipalities within the Metropolitan Manila Area. The Department of Budget and
Management shall review ordinances authorizing the annual or supplemental appropriations of provinces,
highly-urbanized cities, independent component cities, and municipalities within the Metropolitan Manila
Area in accordance with the immediately succeeding Section.
Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.- The
sangguninang panlalawigan shall review the ordinance authorizing annual or supplemental appropriations
of component cities and municipalities in the same manner and within the same period prescribed for the
review of other ordinances.
If within ninety (90) days from receipt of copies of such ordinance, the sangguniang panlalawigan takes no
action thereon, the same shall be deemed to have been reviewed in accordance with law and shall continue
to be in full force and effect. (emphasis supplied)
Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should have taken
positive action. Otherwise, such ordinance was deemed to have been properly reviewed and deemed to
have taken effect. Inasmuch as, in the instant case, the DBM did not follow the appropriate procedure for
reviewing the subject ordinance of Mandaue City and allowed the 90-day period to lapse, it can no longer
question the legality of the provisions in the said ordinance granting additional allowances to judges
stationed in the said city.
WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution, dated September
21, 1995 and May 28, 1996, respectively, of the Commission on Audit are hereby set aside.
No costs.
SO ORDERED.
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 include 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 Motion 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 positions, 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 registered political party with a
national constituency. Commissioner Sadain maintained his vote for petitioner. 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 national 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 reasonable guidelines for determining the
qualifications of candidates since it does not ask for the candidate’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 opportunities
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 merely a privilege
subject to limitations imposed by law. Section 26, Article II of the Constitution neither 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 Justice) 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 access
clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations 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 Omnibus
Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed 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
Constitution 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 compelling
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 mention 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 exercise. 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 democratic [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 January 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
decent 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 candidates"
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.15Moreover, there are election rules and regulations the formulations 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 actually impair the
electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a
one-note joke. The poll body would be bogged by irrelevant minutiae covering 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.
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 fidecandidates 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.
G.R. No. 92541 November 13, 1991
MA. CARMEN G. AQUINO-SARMIENTO, petitioner,
vs.
MANUEL L. MORATO (in his capacity as Chairman of the MTRCB) and the MOVIE & TELEVISION REVIEW AND
CLASSIFICATION BOARD, respondents.
Araullo, Zambrano, Gruba, Chua Law Firm for petitioner.
Francisco Ma. Chanco for respondents.
BIDIN, J.:
At issue in this petition is the citizen's right of access to official records as guaranteed by the constitution.
In February 1989, petitioner, herself a member of respondent Movie and Television Review and
Classification Board (MTRCB), wrote its records officer requesting that she be allowed to examine the
board's records pertaining to the voting slips accomplished by the individual board members after a review
of the movies and television productions. It is on the basis of said slips that films are either banned, cut or
classified accordingly.
Acting on the said request, the records officer informed petitioner that she has to secure prior clearance
from respondent Manuel Morato, as chairman of MTRCB, to gain access to the records sought to be
examined.
Petitioner's request was eventually denied by respondent Morato on the ground that whenever the
members of the board sit in judgment over a film, their decisions as reflected in the individual voting slips
partake the nature of conscience votes and as such, are purely and completely private and personal. It is
the submission of respondents that the individual voting slips is the exclusive property of the member
concerned and anybody who wants access thereto must first secure his (the member's) consent,
otherwise, a request therefor may be legally denied.
Petitioner argues, on the other hand, that the records she wishes to examine are public in character and
other than providing for reasonable conditions regulating the manner and hours of examination,
respondents Morato and the classification board have no authority to deny any citizen seeking examination
of the board's records.
On February 27, 1989, respondent Morato called an executive meeting of the MTRCB to discuss, among
others, the issue raised by petitioner. In said meeting, seventeen (17) members of the board voted to
declare their individual voting records as classified documents which rendered the same inaccessible to the
public without clearance from the chairman. Thereafter, respondent Morato denied petitioner's request to
examine the voting slips. However, it was only much later, i.e., on July 27, 1989, that respondent Board
issued Resolution No. 10-89 which declared as confidential, private and personal, the decision of the
reviewing committee and the voting slips of the members.
Petitioner brought the matter to the attention of the Executive Secretary, which in turn, referred the same
to respondent Morato for appropriate comment.
Another incident which gave rise to this petition occurred in a board meeting held on June 22, 1989. In that
meeting, respondent Morato told the board that he has ordered some deletions on the movie "Mahirap
ang Magmahal" notwithstanding the fact that said movie was earlier approved for screening by the Board
with classification "R-18 without cuts". He explained that his power to unilaterally change the decision of
the Review Committee is authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June 22,1988)
which allows the chairman of the board "to downgrade a film (already) reviewed especially those which are
controversial."
Petitioner informed the Board, however, that respondent Morato possesses no authority to unilaterally
reverse a decision of the review committee under PD 1986 (Creating the Movie and Television Review and
Classification Board).
After the matter was referred by the Deputy Executive Secretary to the Justice Secretary, the latter opined
that PD 1896 does not vest respondent Morato any authority to unilaterally reverse the decision of the
review committee but declined to comment on the constitutionality of Res. No. 10-89 on the ground that
the resolution thereof is a judicial prerogative (Rollo, pp. 38-42).
The Justice Secretary's opinion to the contrary notwithstanding, respondent Morato opted to ignore it.
Hence, this petition anchored on the following:
A. MORATO AND THE MTRCB BY APPROVING AND ENFORCING RESOLUTION NO. 10-89 ACTED WITH
GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION BECAUSE THE SAME VIOLATES
ARTICLE III SECTION 7 OF THE 1987 CONSTITUTION.
B. MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND CONSTITUTES AN UNLAWFUL DELEGATION
OF DISCRETIONARY POWERS.
C. MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION NO. 1 SERIES OF 1990 OF THE
SECRETARY OF JUSTICE AND BY INSISTING ON THE VALIDITY OF RESOLUTION NO. 88-1-25 ACTED
CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR JURISDICTION, AND WITH GRAVE ABUSE
OF DISCRETION.
Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-1-25 which allows the Chairman
of the Board to unilaterally downgrade a film (already) reviewed especially those which are controversial
and 2) MTRCB RESOLUTION No. 10-89 (dated July 27, 1989) declaring as strictly confidential, private and
personal a) the decision of a reviewing committee which previously reviewed a certain film and b) the
individual voting slips of the members of the committee that reviewed the film.
Respondents argue at the outset that the instant petition should be dismissed outright for having failed to
comply with the doctrine of exhaustion of administrative remedies.
We disagree. The doctrine of exhaustion of administrate remedies simply provides that before a party
litigant is allowed resort to the courts, he is required to comply with all administrative remedies available
under the law (Rosales v. Court of Appeals, 165 SCRA 344 [1988]). The rationale behind this salutory
principle is that for reasons of practical considerations, comity and convenience, the courts of law will not
entertain a case until all the available administrative remedies provided by law have been resorted to and
the appropriate authorities have been given ample opportunity to act and to correct the errors committed
in the administrative level. If the error is rectified, judicial intervention would then be unnecessary.
Nonetheless, the doctrine of exhaustion of administrative remedies is not absolute. The applicability of the
principle admits of certain exceptions, such as: 1) when no administrative review is provided by law; 2)
when the only question involved is one of law (Valmonte v. Valmonte, 170 SCRA 256 [1989], citing Aguilar
v. Valencia, 40 SCRA 210 [1971]; Malabanan v. Ramento, 129 SCRA 359 [1984]; Bagatsing v. Ramirez, 74
SCRA 306; Del Mar v. Philippine Veterans Administration, 51 SCRA 340 [1973]; Pascual v. Provincial Board,
106 Phil. 466 [1959]; 3) where the party invoking the doctrine is guilty of estoppel (Vda. de Tan v. Veterans'
Backpay Commission [1969]; 4) where the challenged administrative action is patently illegal, arbitrary and
oppressive (Azur v. Provincial Board, 27 SCRA 50 [1969]; National Development Co. v. Collector of Customs
of Manila, 9 SCRA 429 [1963]; 5) where there is unreasonable delay or official inaction that would greatly
prejudice the complainant (Gravador v. Mamigo, 20 SCRA 742 [1967]; Azuelo v. Arnaldo, 108 Phil. 293
[1960]; 6) where to exhaust administrative review is impractical and unreasonable (Cipriano v. Marcelino,
43 SCRA 291); and 7) where the rule of qualified political agency applies (Demaisip v. Court of Appeals, 106
Phil. 237 [1906]).
The issue raised in the instant petition is one of law, hence the doctrine of non-exhaustion of
administrative remedy relied upon by respondents is inapplicable and cannot be given any effect. At any
rate, records are replete with events pointing to the fact that petitioner adhered to the administrative
processes in the disposition of the assailed resolutions of public respondents prior to filing the instant
petition by, among others, writing the Executive Secretary and bringing the matter to the attention of the
Office of the President (Rollo, pp. 145-147). Respondents' claim that petitioner failed to exhaust
administrative remedies must therefore fail.
Having disposed of the procedural objection raised by respondents, We now proceed to resolve the issues
raised by petitioner. In this regard, We find respondents' refusal to allow petitioner to examine the records
of respondent MTRCB, pertaining to the decisions of the review committee as well as the individual voting
slips of its members, as violative of petitioner's constitutional right of access to public records. More
specifically, Sec. 7, Art. III of the Constitution provides that:
The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law. (emphasis supplied)
As We held in Legaspi v. Civil Service Commission (150 SCRA 530 [1987]), this constitutional provision is self-
executory and supplies "the rules by means of which the right to information may be enjoyed (Cooley, A
Treatise on Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to
afford access to sources of information. Hence, the fundamental right therein recognized may be asserted
by the people upon the ratification of the constitution without need for any ancillary act of the Legislature
(Id. at 165). What may be provided for by the Legislature are reasonable conditions and limitations upon
the access to be afforded which must, of necessity, be consistent with the declared State Policy of full
public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28)." (See also Tañada
v. Tuvera, 136 SCRA 27 [1985]; Valmonte v. Belmonte, Jr., 170 SCRA 256 [1989]).
Respondents contend, however, that what is rendered by the members of the board in reviewing films and
reflected in their individual voting slip is their individual vote of conscience on the motion picture or
television program and as such, makes the individual voting slip purely private and personal; an exclusive
property of the member concerned.
The term private has been defined as "belonging to or concerning, an individual person, company, or
interest"; whereas, public means "pertaining to, or belonging to, or affecting a nation, state, or community
at large" (People v. Powell, 274 NW 372 [1937]). May the decisions of respondent Board and the individual
members concerned, arrived at in an official capacity, be considered private? Certainly not. As may be
gleaned from the decree (PD 1986) creating the respondent classification board, there is no doubt that its
very existence is public is character; it is an office created to serve public interest. It being the case,
respondents can lay no valid claim to privacy. The right to privacy belongs to the individual acting in his
private capacity and not to a governmental agency or officers tasked with, and acting in, the discharge of
public duties (See Valmonte v. Belmonte, Jr., supra.) There can be no invasion of privacy in the case at bar
since what is sought to be divulged is a product of action undertaken in the course of performing official
functions. To declare otherwise would be to clothe every public official with an impregnable mantle of
protection against public scrutiny for their official acts.
Further, the decisions of the Board and the individual voting slips accomplished by the members concerned
are acts made pursuant to their official functions, and as such, are neither personal nor private in nature
but rather public in character. They are, therefore, public records access to which is guaranteed to the
citizenry by no less than the fundamental law of the land. Being a public right, the exercise thereof cannot
be made contingent on the discretion, nay, whim and caprice, of the agency charged with the custody of
the official records sought to be examined. The constitutional recognition of the citizen's right of access to
official records cannot be made dependent upon the consent of the members of the board concerned,
otherwise, the said right would be rendered nugatory. As stated by this Court in Subido v. Ozaeta (80 Phil.
383 [1948]):
Except, perhaps when it is clear that the purpose of the examinations is unlawful, or sheer, idle
curiosity, we do not believe it is the duty under the law of registration officers to concern
themselves with the motives, reasons, and objects of the person seeking access to the records.
It is not their prerogative to see that the information which the records contain is not flaunted
before public gaze, or that scandal is not made of it. If it be wrong to publish the contents of the
records, it is the legislature and not the officials having custody thereof which is called upon to
devise a remedy. (emphasis supplied)
It is significant to point out that this Court in the 1948 case of Subido v. Ozaeta, supra, upheld the right to
information based on the statutory right then provided in Sec. 56 of the Land Registration Act (Act 496, as
amended). Consequently, We see no cogent reason why said right, now constitutionalized, should be given
less efficacy and primacy than what the fundament law mandates.
The Court is not unaware of RA 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees) which provides, among others, certain exceptions as regards the availability of official records
or documents to the requesting public, e.g., closed door Cabinet sessions and deliberations of this Court.
Suffice it to state, however, that the exceptions therein enumerated find no application in the case at bar.
Petitioner request is not concerned with the deliberations of respondent Board but with its documents or
records made after a decision or order has been rendered. Neither will the examination involve disclosure
of trade secrets or matters pertaining to national security which would otherwise limit the right of access
to official records (See Legaspi v. Civil Service Commission, supra).
We are likewise not impressed with the proposition advanced by respondents that respondent Morato is
empowered by PD 1986 to unilaterally downgrade or upgrade a film reviewed especially those which are
controversial. The pertinent provisions of said decree provides:
Sec 4. Decision. — The decision of the BOARD either approving or disapproving for exhibition in
the Philippines a motion picture, television program, still and other pictorial advertisement
submitted to it for examination and preview must be rendered within a period of ten (10) days
which shall be counted from the date of receipt by the BOARD of an application for the
purpose . . .
For each review session, the Chairman of the Board shall designate a sub-committee composed
of at least three BOARD members to undertake the work of review. Any disapproval or deletion
must be approved by a majority of the sub-committee members so designated. After receipt of
the written decision of the sub-committee, a motion for reconsideration in writing may be
made, upon which the Chairman of the Board shall designate a sub-committee of five BOARD
members to undertake a second review session, whose decision on behalf of the Board shall be
rendered through a majority of the sub-committee members so designated and present at the
second review session. This second review session shall be presided over by the Chairman, or
the Vice-Chairman. The decision of the BOARD in the second review session shall be rendered
within five (5) days from the date of receipt of the motion for reconsideration.
Every decision of the BOARD disapproving a motion picture, television program or publicity
material for exhibition in the Philippines must be in writing, and shall state the reasons or
grounds for such disapproval. No film or motion picture intended for exhibition at the
moviehouses or theaters or on television shall be disapproved by reason of its topic, theme or
subject matter, but upon the merits of each picture or program considered in its entirety.
The second decision of the BOARD shall be final, with the exception of a decision disapproving
or prohibiting a motion picture or television program in its entirety which shall be appealable to
the President of the Philippines, who may himself decide the appeal, or be assisted either by an
ad hoe committee he may create or by the Appeals Committee herein created.
An Appeals Committee in the Office of the President of the Philippines is hereby created
composed of a Chairman and four (4) members to be appointed by the President of the
Philippines, which shall submit its recommendation to the President. The Office of the
Presidential Assistant for Legal Affairs shall serve as the Secretariat of the Appeals Committee.
The decision of the President of the Philippines on any appealed matter shall be final.
Implementing Rules and Regulations
Sec 11. Review by Sub-Committee of Three. — a) A proper application having been filed, the
Chairman of the Board shall, as the exigencies of the service may permit, designate a Sub-
Committee of at least three Board Members who shall meet, with notice to the applicant,
within ten days from receipt of the completed application. The Sub-Committee shall then
preview the motion picture subject of the application.
b) Immediately after the preview, the applicant or his representative shall withdraw to await
the results of the deliberation of the Sub-Committee. After reaching a decision, the Sub-
Committee shall summon the applicant or his representative and inform him of its decision
giving him an opportunity either to request reconsideration or to offer certain cuts or deletions
in exchange for a better classification. The decision shall be in writing, stating, in case of
disapproval of the film or denial of the classification rating desired or both, the reason or
reasons for such disapproval or denial and the classification considered by the Sub-Committee
member dissenting from the majority opinion may express his dissent in writing.
c) The decision including the dissenting opinion, if any, shall immediately be submitted to the
Chairman of the Board for transmission to the applicant.
Sec 12. Review by Sub-Committee of Five. — Within five days from receipt of a copy of the
decision of the Sub-Committee referred to in the preceding section, the applicant may file a
motion for reconsideration in writing of that decision. On receipt of the motion, the Chairman
of the Board shall designate a Sub-Committee of Five Board Members which shall consider the
motion and, within five days of receipt of such motion, conduct a second preview of the film.
 The review shall, to the extent applicable, follow the same procedure provided in the preceding
section.
Sec 13. Reclassification. — An applicant desiring a change in the classification rating given his
film by either the Sub-Committee of Three? or Committee of Five mentioned in the
immediately preceeding two sections may re-edit such film and apply anew with the Board for
its review and reclassification.
Sec 14. Appeal. — The decision of the Committee of Five Board Members in the second review
shall be final, with the exception of a decision disapproving or prohibiting a motion picture in its
entirety which shall be appealable to the President of the Philippines who may himself decide
the appeal or refer it to the Appeals Committee in the Office of the President for adjudication.
On the other hand, the powers and functions of the MTRCB Chairman are found in Section 5 of the same
decree as follows:
Sec. 5. Executive Officer. — The Chairman of the BOARD shall be the Chief Executive Officer of
the BOARD. He shall exercise the following functions, powers and duties:
(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued
by the BOARD;
(b) Direct and supervise the operations and the internal affairs of the BOARD;
(c) Establish the internal organization and administrative procedures of the BOARD, and
recommend to the BOARD the appointment of the necessary administrative and subordinate
personnel; and
(d) Exercise such other powers and functions and perform such duties as are not specifically
lodged in the BOARD.
It is at once apparent from a reading of the above provisions of PD 1986 that respondent Morato, as
Chairman of the MTRCB, is not vested with any authority to reverse or overrule by himself alone a decision
rendered by a committee which conducted a review of motion pictures or television programs.
The power to classify motion pictures into categories such as "General Patronage" or "For Adults Only" is
vested with the respondent Board itself and not with the Chairman thereof (Sec. 3 [e], PD 1986). As Chief
Executive Officer, respondent Morato's function as Chairman of the Board calls for the implementation and
execution, not modification or reversal, of the decisions or orders of the latter (Sec. 5 [a], Ibid.). The power
of classification having been reposed by law exclusively with the respondent Board, it has no choice but to
exercise the same as mandated by law, i.e., as a collegial body, and not transfer it elsewhere or discharge
said power through the intervening mind of another. Delegata potestas non potest delegari — a delegated
power cannot be delegated. And since the act of classification involves an exercise of the Board's
discretionary power with more reason the Board cannot, by way of the assailed resolution, delegate said
power for it is an established rule in administrative law that discretionary authority cannot be a subject of
delegation.
WHEREFORE, the instant petition is GRANTED. Resolution Nos. 10-89 and 88-1-25 issued by the respondent
Board are hereby declared null and void.
SO ORDERED.
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of public concern is invoked in this special
civil action for mandamus instituted by petitioner Valentin L. Legaspi against the Civil Service Commission.
The respondent had earlier denied Legaspi's request for information on the civil service eligibilities of
certain persons employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and Mariano Agas, is
guaranteed by the Constitution, and that he has no other plain, speedy and adequate remedy to acquire
the information, petitioner prays for the issuance of the extraordinary writ of mandamus to compel the
respondent Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the fundamental right to
information. The same remedy was resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-
63915, April 24,1985,136 SCRA 27) wherein the people's right to be informed under the 1973 Constitution
(Article IV, Section 6) was invoked in order to compel the publication in the Official Gazette of various
presidential decrees, letters of instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the Land Registration Act
(Section 56, Act 496, as amended) was claimed by a newspaper editor in another mandamus proceeding,
this time to demand access to the records of the Register of Deeds for the purpose of gathering data on
real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern first gained recognition in the Bill of
Rights, Article IV, of the 1973 Constitution, which states:
Sec. 6. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be
afforded the citizen subject to such limitations as may be provided by law.
The foregoing provision has been retained and the right therein provided amplified in Article III, Sec. 7 of
the 1987 Constitution with the addition of the phrase, "as well as to government research data used as
basis for policy development." The new provision reads:
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis. for policy development, shall be afforded the citizen, subject to
such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for
by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of
necessity, be consistent with the declared State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever
limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become
operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be
properly invoked in a mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due course to this Petition. He
challenges the petitioner's standing to sue upon the ground that the latter does not possess any clear legal
right to be informed of the civil service eligibilities of the government employees concerned. He calls
attention to the alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the Commission to furnish
the petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes
said party from the enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix, 77 Phil.
1012 [1947]). The petitioner in every case must therefore be an "aggrieved party" in the sense that he
possesses a clear legal right to be enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is
asserted that, the instant Petition is bereft of any allegation of Legaspi's actual interest in the civil service
eligibilities of Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed
client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the
right of the people to information on matters of public concern, which, by its very nature, is a public right.
It has been held that:
* * * when the question is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that he has any legal or special interest in the
result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws * *
* (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses the right.
The Court had opportunity to define the word "public" in the Subido case, supra, when it held that even
those who have no direct or tangible interest in any real estate transaction are part of the "public" to
whom "(a)ll records relating to registered lands in the Office of the Register of Deeds shall be open * * *"
(Sec. 56, Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say
that only those who have a present and existing interest of a pecuniary character in the particular
information sought are given the right of inspection is to make an unwarranted distinction. *** (Subido vs.
Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to seek redress for the alleged
obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the
present suit.
2. For every right of the people recognized as fundamental, there lies a corresponding duty on the
part of those who govern, to respect and protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under fundamental rules defining the limits of their
power so as to shield individual rights against its arbitrary exercise can properly claim to be constitutional
(Cooley, supra, at p. 5). Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties
exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution and the New Charter expressly
mandate the duty of the State and its agents to afford access to official records, documents, papers and in
addition, government research data used as basis for policy development, subject to such limitations as
may be provided by law. The guarantee has been further enhanced in the New Constitution with the
adoption of a policy of full public disclosure, this time "subject to reasonable conditions prescribed by law,"
in Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by what this Court declared as an
imperative duty of the government officials concerned to publish all important legislative acts and
resolutions of a public nature as well as all executive orders and proclamations of general applicability. We
granted mandamus in said case, and in the process, We found occasion to expound briefly on the nature of
said duty:
* * * That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be published
in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to
what must be in included or excluded from such publication. (Tanada v. Tuvera, supra, at 39). (Emphasis
supplied).
The absence of discretion on the part of government agencia es in allowing the examination of public
records, specifically, the records in the Office of the Register of Deeds, is emphasized in Subido vs. Ozaeta,
supra:
Except, perhaps when it is clear that the purpose of the examination is unlawful, or sheer, idle curiosity, we
do not believe it is the duty under the law of registration officers to concern themselves with the motives,
reasons, and objects of the person seeking access to the records. It is not their prerogative to see that the
information which the records contain is not flaunted before public gaze, or that scandal is not made of it.
If it be wrong to publish the contents of the records, it is the legislature and not the officials having custody
thereof which is called upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government agencies are without
discretion in refusing disclosure of, or access to, information of public concern. This is not to lose sight of
the reasonable regulations which may be imposed by said agencies in custody of public records on the
manner in which the right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which persons desiring to do
so, may inspect, examine or copy records relating to registered lands. However, the regulations which the
Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that damage to or loss of, the records
may be avoided, that undue interference with the duties of the custodian of the books and documents and
other employees may be prevented, that the right of other persons entitled to make inspection may be
insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a municipal judge, to regulate
the manner of inspection by the public of criminal docket records in the case of Baldoza vs. Dimaano (Adm.
Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent
judge for his alleged refusal to allow examination of the criminal docket records in his sala. Upon a finding
by the Investigating Judge that the respondent had allowed the complainant to open and view the subject
records, We absolved the respondent. In effect, We have also held that the rules and conditions imposed
by him upon the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our statement that the authority to
regulate the manner of examining public records does not carry with it the power to prohibit. A distinction
has to be made between the discretion to refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the
custody of public records. Its authority to regulate access is to be exercised solely to the end that damage
to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be
prevented, and more importantly, that the exercise of the same constitutional right by other persons shall
be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment
of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to information of public concern
is a recognition of the essentiality of the free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free discussion
enables members of society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974]) by giving them a better perspective of the vital issues confronting the
nation.
But the constitutional guarantee to information on matters of public concern is not absolute. It does not
open every door to any and all information. Under the Constitution, access to official records, papers, etc.,
are "subject to limitations as may be provided by law" (Art. III, Sec. 7, second sentence). The law may
therefore exempt certain types of information from public scrutiny, such as those affecting national
security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the availability of access to a particular public
record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or
one that involves public interest, and, (b) not being exempted by law from the operation of the
constitutional guarantee. The threshold question is, therefore, whether or not the information sought is of
public interest or public concern.
a. This question is first addressed to the government agency having custody of the desired
information. However, as already discussed, this does not give the agency concerned any discretion to
grant or deny access. In case of denial of access, the government agency has the burden of showing that
the information requested is not of public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the
constitutional right. As aptly observed, ". . . the government is in an advantageous position to marshall and
interpret arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the
constitutional right, every denial of access by the government agency concerned is subject to review by the
courts, and in the proper case, access may be compelled by a writ of Mandamus.
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the
final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for adequate notice to the
public of the various laws which are to regulate the actions and conduct of citizens. In Subido vs. Ozaeta,
supra, the public concern deemed covered by the statutory right was the knowledge of those real estate
transactions which some believed to have been registered in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only according to merit and fitness to be determined, as far
as practicable, and except as to positions which are policy determining, primarily confidential or highly
technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that
government positions requiring civil service eligibility are occupied only by persons who are eligibles. Public
officers are at all times accountable to the people even as to their eligibilities for their respective positions.
b. But then, it is not enough that the information sought is of public interest. For mandamus to lie
in a given case, the information must not be among the species exempted by law from the operation of the
constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to
cite any provision in the Civil Service Law which would limit the petitioner's right to know who are, and who
are not, civil service eligibles. We take judicial notice of the fact that the names of those who pass the civil
service examinations, as in bar examinations and licensure examinations for various professions, are
released to the public. Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case,
the government employees concerned claim to be civil service eligibles, the public, through any citizen, has
a right to verify their professed eligibilities from the Civil Service Commission.
The civil service eligibility of a sanitarian being of public concern, and in the absence of express limitations
under the law upon access to the register of civil service eligibles for said position, the duty of the
respondent Commission to confirm or deny the civil service eligibility of any person occupying the position
becomes imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles for the position of
sanitarian, and to confirm or deny, the civil service eligibility of Julian Sibonghanoy and Mariano Agas, for
said position in the Health Department of Cebu City, as requested by the petitioner Valentin L. Legaspi.
As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished
with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a
clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez
of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of
the documents evidencing their loan. Expenses in connection herewith shall be borne by us.

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the present
regime.
G.R. No. 74930 February 13, 1989
The right of the people to information on matters of public concern shall be recognized. Access to official
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, records, and to documents and papers pertaining to official acts, transactions or decisions, shall be
JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).
FADUL, petitioners,
vs. We trust that within five (5) days from receipt hereof we will receive your favorable response on the
FELICIANO BELMONTE, JR., respondent. matter.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners. Very truly yours,

The Solicitor General for respondent. (Sgd.) RICARDO C. VALMONTE

[Rollo, p. 7.]
CORTES, J.:
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to
information and pray that respondent be directed: June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street
(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to Caloocan City
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election
thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or Dear Compañero:

(b) to furnish petitioners with certified true copies of the documents evidencing their respective Possibly because he must have thought that it contained serious legal implications, President & General
loans; and/or Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986
requesting a list of the opposition members of Batasang Pambansa who were able to secure a clean loan of
(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; P2 million each on guaranty of Mrs. Imelda Marcos.
paragraphing supplied.]
My opinion in this regard is that a confidential relationship exists between the GSIS and all those who
The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this
confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered
June 4, 1986 by the courts.

Hon. Feliciano Belmonte As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I
GSIS General Manager regret very much that at this time we cannot respond positively to your request.
Arroceros, Manila
Very truly yours,
Sir:
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance
System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that
for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action necessary
within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct
interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing
loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a
consolidated reply, the petition was given due course and the parties were required to file their
memoranda. The parties having complied, the case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among
which is that petitioners have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of
the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted
that since administrative remedies were not exhausted, then petitioners have no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are
entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued
that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a party can be allowed to resort to the
courts, he is expected to have exhausted all means of administrative redress available under the law. The
courts for reasons of law, comity and convenience will not entertain a case unless the available
administrative remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum. However, the principle of
exhaustion of administrative remedies is subject to settled exceptions, among which is when only a
question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R.
No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA
359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional
right to information, is one which can be passed upon by the regular courts more competently than the
GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case
from the application of the general rule on exhaustion of administrative remedies is warranted. Having
disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus hes
to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to
information.
We shall deal first with the second and third alternative acts sought to be done, both of which involve the
issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by the
GSIS.
This is not the first time that the Court is confronted with a controversy directly involving the constitutional
right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent
case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld
the people's constitutional right to be informed of matters of public interest and ordered the government
agencies concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which
provided:
The right of the people to information on 'matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be
afforded the citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic thought and data
relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic
government envisioned under our Constitution. The cornerstone of this republican system of government
is delegation of power by the people to the State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims and caprices of those to whom
the power had been delegated. The postulate of public office as a public trust, institutionalized in the
Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly
be were empty words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to
check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not
only critical, but vital to the exercise of their professions. The right of access to information ensures that
these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For
an essential element of these freedoms is to keep open a continuing dialogue or process of communication
between the government and the people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and
have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and expression. But this is
not to say that the right to information is merely an adjunct of and therefore restricted in application by
the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-
hand with the constitutional policies of full public disclosure * and honesty in the public service. ** It is
meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the
people's right to information is limited to "matters of public concern," and is further "subject to such
limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or
"public concern," and is not exempted by law from the operation of the constitutional guarantee [Legazpi
v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and "public concern". As
observed in Legazpi:
In determining whether or not a particular information is of public concern there is no rigid test which can
be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the
final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional right to information was the
need for adequate notice to the public of the various laws which are to regulate the actions and conduct of
citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that government positions
requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain Members of the
Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs.
Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the administrator of
various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character.
More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance
Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of
the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to
manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as
amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the
GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the
public to ensure that these funds are managed properly with the end in view of maximizing the benefits
that accrue to the insured government employees. Moreover, the supposed borrowers were Members of
the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore
expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity
and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged
borrowers make the information sought clearly a matter of public interest and concern.
A second requisite must be met before the right to information may be enforced through mandamus
proceedings, viz., that the information sought must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is
argued that a policy of confidentiality restricts the indiscriminate dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the
documents subject of this petition. His position is apparently based merely on considerations of policy. The
judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law
should be. Under our system of government, policy issues are within the domain of the political branches
of the government, and of the people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is equally protected by the
Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed
outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v.
Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life,
is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector — protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modem society has developed. All the forces of
technological age — industrialization, urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.]
When the information requested from the government intrudes into the privacy of a citizen, a potential
conflict between the rights to information and to privacy may arise. However, the competing interests of
these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court in
Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the
GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has
no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its
borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80
N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence
may be invoked only by the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned borrowers themselves may not
succeed if they choose to invoke their right to privacy, considering the public offices they were holding at
the time the loans were alleged to have been granted. It cannot be denied that because of the interest
they generate and their newsworthiness, public figures, most especially those holding responsible positions
in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions
being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and
82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in
nature and hence, are not covered by the Constitutional right to information on matters of public concern
which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation performing proprietary functions, are
outside the coverage of the people's right of access to official records.
It is further contended that since the loan function of the GSIS is merely incidental to its insurance function,
then its loan transactions are not covered by the constitutional policy of full public disclosure and the right
to information which is applicable only to "official" transactions.
First of all, the "constituent — ministrant" dichotomy characterizing government function has long been
repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-
21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the government, whether
carrying out its sovereign attributes or running some business, discharges the same function of service to
the people.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify
the exclusion of the transactions from the coverage and scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-
owned and controlled corporations and transactions entered into by them within the coverage of the State
policy of fun public disclosure is manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions" — referring to the transactions of
the State — and when we say the "State" which I suppose would include all of the various agencies,
departments, ministries and instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation
of the contract, or does he refer to the contract itself?
MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both steps
leading to a contract, and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the
transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis
supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon the Court, are
nevertheless persuasive, and considering further that government-owned and controlled corporations,
whether performing proprietary or governmental functions are accountable to the people, the Court is
convinced that transactions entered into by the GSIS, a government-controlled corporation created by
special legislation are within the ambit of the people's right to be informed pursuant to the constitutional
policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to
reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to
the end that damage to or loss of the records may be avoided, that undue interference with the duties of
the custodian of the records may be prevented and that the right of other persons entitled to inspect the
records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80
Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-
Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public
concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required. The corresponding duty of the respondent to perform the required act must be
clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido,
G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard,
there being no duty on the part of respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government
Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to
reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as the
GSIS may deem necessary.
SO ORDERED.