Republic of the Philippines

Supreme Court
Manila

EN BANC

ISABELITA C. VINUYA, VICTORIA G.R. No. 162230

C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA, Present:
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA PUNO, C. J.,
ALONZO, RUFINA P. MALLARI, CARPIO,
ROSARIO M. ALARCON, RUFINA C. CORONA,
GULAPA, ZOILA B. MANALUS, CARPIO MORALES,
CORAZON C. CALMA, MARTA A. VELASCO, JR.,
GULAPA, TEODORA M. HERNANDEZ, NACHURA,
FERMIN B. DELA PEA, MARIA DELA LEONARDO-DE CASTRO,
PAZ B. CULALA, ESPERANZA BRION,
MANAPOL, JUANITA M. BRIONES, PERALTA,
VERGINIA M. GUEVARRA, MAXIMA BERSAMIN,
ANGULO, EMILIA SANGIL, TEOFILA DEL CASTILLO,
R. PUNZALAN, JANUARIA G. GARCIA, ABAD,
PERLA B. BALINGIT, BELEN A. VILLARAMA, JR.,
CULALA, PILAR Q. GALANG, PEREZ, and
ROSARIO C. BUCO, GAUDENCIA C. MENDOZA, JJ.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,

- versus -

THE HONORABLE EXECUTIVE

SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ,
and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO,
Respondents.
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those
asserted by plaintiffs in these actions, exchanged full compensation of plaintiffs for a
future peace. History has vindicated the wisdom of that bargain. And while full
compensation for plaintiffs' hardships, in the purely economic sense, has been denied
these former prisoners and countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free society and in a more peaceful
world services the debt.[1]

There is a broad range of vitally important areas that must be regularly decided by the Executive
Department without either challenge or interference by the Judiciary. One such area involves the delicate
arena of foreign relations. It would be strange indeed if the courts and the executive spoke with different
voices in the realm of foreign policy. Precisely because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the very questions
necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive
Secretary, the Secretary of the Department of Foreign Affairs (DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange Commission, established for the purpose of
providing aid to the victims of rape by Japanese military forces in the Philippines during the
Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. Their communities were
bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their
Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries,
pain and disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department through the
DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the comfort women stations in the Philippines. However,
officials of the Executive Department declined to assist the petitioners, and took the position that the
individual claims of the comfort women for compensation had already been fully satisfied by Japans
compliance with the Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse
their claims for the crimes against humanity and war crimes committed against them; and (b) compel the
respondents to espouse their claims for official apology and other forms of reparations against Japan
before the International Court of Justice (ICJ) and other international tribunals.

Petitioners arguments

Petitioners argue that the general waiver of claims made by the Philippine government in the
Treaty of Peace with Japan is void. They claim that the comfort women system established by Japan,
and the brutal rape and enslavement of petitioners constituted a crime against humanity,[3] sexual
slavery,[4] and torture.[5] They allege that the prohibition against these international crimes is jus
cogens norms from which no derogation is possible; as such, in waiving the claims of Filipina comfort
women and failing to espouse their complaints against Japan, the Philippine government is in breach of
its legal obligation not to afford impunity for crimes against humanity. Finally, petitioners assert that the
Philippine governments acceptance of the apologies made by Japan as well as funds from the Asian
Womens Fund (AWF) were contrary to international law.

Respondents Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt
with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is also
recognized that the resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for all such
damage and suffering and at the present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers

waive all reparations claims of the Allied Powers, other claims of the Allied
Powers and their nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and claims of the Allied
Powers for direct military costs of occupation.

In addition, respondents argue that the apologies made by Japan[8] have been satisfactory, and
that Japan had addressed the individual claims of the women through the atonement money paid by the
Asian Womens Fund.
Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937,
Japanese military forces captured the city of Nanking in China and began a barbaric campaign of terror
known as the Rape of Nanking, which included the rapes and murders of an estimated 20,000 to 80,000
Chinese women, including young girls, pregnant mothers, and elderly women.[9]

In reaction to international outcry over the incident, the Japanese government sought ways to
end international condemnation[10] by establishing the comfort women system. Under this system, the
military could simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a
regulated environment.[11] Comfort stations would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of occupied territories.[12]

Daily life as a comfort woman was unmitigated misery.[13] The military forced victims into barracks-
style stations divided into tiny cubicles where they were forced to live, sleep, and have sex with as many
30 soldiers per day.[14] The 30 minutes allotted for sexual relations with each soldier were 30-minute
increments of unimaginable horror for the women.[15] Disease was rampant.[16] Military doctors regularly
examined the women, but these checks were carried out to prevent the spread of venereal diseases;
little notice was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.

Fewer than 30% of the women survived the war.[17] Their agony continued in having to suffer with the
residual physical, psychological, and emotional scars from their former lives. Some returned home and
were ostracized by their families. Some committed suicide. Others, out of shame, never returned
home.[18]

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal responsibility
and pay compensatory damages for the comfort women system were through a series of lawsuits,
discussion at the United Nations (UN), resolutions by various nations, and the Womens International
Criminal Tribunal. The Japanese government, in turn, responded through a series of public apologies
and the creation of the AWF.[19]

Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by
former comfort women against the Japanese government. The Tokyo District Court however dismissed
their case.[20] Other suits followed,[21] but the Japanese government has, thus far, successfully caused
the dismissal of every case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort
women system brought their claims before the United States (US). On September 18, 2000, 15 comfort
women filed a class action lawsuit in the US District Court for the District of Columbia[23] "seeking money
damages for [allegedly] having been subjected to sexual slavery and torture before and during World
War II," in violation of "both positive and customary international law." The case was filed pursuant to the
Alien Tort Claims Act (ATCA),[24] which allowed the plaintiffs to sue the Japanese government in
a US federal district court.[25] On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that [t]here is no question that this court is not the appropriate forum in
which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did
not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.

The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.[26] On
appeal, the US Supreme Court granted the womens petition for writ of certiorari, vacated the judgment of
the District of Columbia Court of Appeals, and remanded the case.[27] On remand, the Court of Appeals
affirmed its prior decision, noting that much as we may feel for the plight of the appellants, the courts of
the US simply are not authorized to hear their case.[28] The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for assistance in
investigating crimes committed by Japan against Korean women and seeking reparations for former
comfort women.[29] The UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy
as the issue's special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's
responsibility in forcing Korean women to act as sex slaves for the imperial army, and made the
following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial
Army during the Second World War was a violation of its obligations under
international law and accept legal responsibility for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according
to principles outlined by the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A special administrative tribunal for
this purpose should be set up with a limited time-frame since many of the victims
are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army
during the Second World War;
 (d) Make a public apology in writing to individual women who have come forward and
can be substantiated as women victims of Japanese military sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect

historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities, also presented a report to the Sub-Committee on June 22,
1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like
Practices During Armed Conflict. The report included an appendix entitled An Analysis of the Legal
Liability of the Government of Japan for 'Comfort Women Stations' established during the Second World
War,[30] which contained the following findings:

68. The present report concludes that the Japanese Government remains liable for
grave violations of human rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese Governments arguments to the
contrary, including arguments that seek to attack the underlying humanitarian law
prohibition of enslavement and rape, remain as unpersuasive today as they were when
they were first raised before the Nuremberg war crimes tribunal more than 50 years
ago. In addition, the Japanese Governments argument that Japan has already settled all
claims from the Second World War through peace treaties and reparations agreements
following the war remains equally unpersuasive. This is due, in large part, to the failure
until very recently of the Japanese Government to admit the extent of the Japanese
militarys direct involvement in the establishment and maintenance of these rape
centres. The Japanese Governments silence on this point during the period in which
peace and reparations agreements between Japan and other Asian Governments were
being negotiated following the end of the war must, as a matter of law and justice,
preclude Japan from relying today on these peace treaties to extinguish liability in these
cases.

69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with
which similar crimes are committed today. The Government of Japan has taken some
steps to apologize and atone for the rape and enslavement of over 200,000 women and
girls who were brutalized in comfort stations during the Second World War. However,
anything less than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to provide
adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the reparations sought.
Women's International War Crimes

Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal established by a
number of Asian women and human rights organizations, supported by an international coalition of non-
governmental organizations.[31] First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order
to adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring
those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence
against women.

After examining the evidence for more than a year, the tribunal issued its verdict on December 4,
2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for
the rape and sexual slavery of women.[32] It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was
organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor
representatives, introduced House Resolution 121 which called for Japanese action in light of the
ongoing struggle for closure by former comfort women. The Resolution was formally passed on July 30,
2007,[33] and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1)
should formally acknowledge, apologize, and accept historical responsibility in a clear
and unequivocal manner for its Imperial Armed Forces' coercion of young women into
sexual slavery, known to the world as comfort women, during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration of World
War II; (2) would help to resolve recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to make such an apology as a
public statement in his official capacity; (3) should clearly and publicly refute any claims
that the sexual enslavement and trafficking of the comfort women for the Japanese
Imperial Army never occurred; and (4) should educate current and future generations
about this horrible crime while following the recommendations of the international
community with respect to the comfort women.[34]

In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121.[35] Entitled, Justice for Comfort Women, the
resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a
removal of the legal obstacles preventing compensation; and (3) unabridged education of the past. The
resolution also stressed the urgency with which Japan should act on these issues, stating: the right of
individuals to claim reparations against the government should be expressly recognized in national law,
and cases for reparations for the survivors of sexual slavery, as a crime under international law, should
be prioritized, taking into account the age of the survivors.

The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to
admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual slavery,
and to restore references in Japanese textbooks to its war crimes.[36] The Dutch parliament's resolution
calls for the Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet
Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdoms Parliament also produced a report in
November, 2008 entitled, "Global Security: Japan and Korea" which concluded that Japan should
acknowledge the pain caused by the issue of comfort women in order to ensure cooperation
between Japan and Korea.

Statements of Remorse made by representatives of

the Japanese government

Various officials of the Government of Japan have issued the following public statements
concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime
"comfort women" since December 1991. I wish to announce the findings as a result of
that study.

As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the request of the military
authorities of the day. The then Japanese military was, directly or indirectly, involved in
the establishment and management of the comfort stations and the transfer of comfort
women. The recruitment of the comfort women was conducted mainly by private
recruiters who acted in response to the request of the military. The Government study
has revealed that in many cases they were recruited against their own will, through
coaxing coercion, etc., and that, at times, administrative/military personnel directly took
 part in the recruitments. They lived in misery at comfort stations under a coercive
atmosphere.

As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a large
part. The Korean Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally against their will, through
coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of the day,
that severely injured the honor and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its sincere apologies and
remorse to all those, irrespective of place of origin, who suffered immeasurable pain and
incurable physical and psychological wounds as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously,

while listening to the views of learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above instead of evading them,
and take them to heart as lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever engraving such issues in our
memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor and dignity
of many women, I would like to take this opportunity once again to express my profound
and sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse
to all the women who endured immeasurable and painful experiences and suffered
incurable physical and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately convey
it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

 Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japan carried out such acts in
the past and inflicted suffering on the people of other countries, especially in Asia, the
Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well, and
to the press. I have been consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters
to the comfort women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by
NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated
in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of Councilors, the Diet
of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I
have expressed my apologies for the extremely agonizing circumstances into which they
were placed. (Excerpt from Telephone Conference by Prime Minister Abe to President
George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were
taken as wartime comfort women. As a human being, I would like to express my
sympathies, and also as prime minister of Japan I need to apologize to them. My
administration has been saying all along that we continue to stand by the Kono
Statement. We feel responsible for having forced these women to go through that
hardship and pain as comfort women under the circumstances at the time. (Excerpt from
an interview article "A Conversation with Shinzo Abe" by the Washington Post, April 22,
2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to
all those who suffered extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such extreme and harsh
conditions. Human rights are violated in many parts of the world during the 20th Century;
therefore we must work to make the 21st Century a wonderful century in which no
human rights are violated. And the Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press
Availability after the summit meeting at Camp David between Prime Minister Abe and
President Bush, April 27, 2007).

The Asian Women's Fund

 Established by the Japanese government in 1995, the AWF represented the government's
concrete attempt to address its moral responsibility by offering monetary compensation to victims of the
comfort women system.[37] The purpose of the AWF was to show atonement of the Japanese people
through expressions of apology and remorse to the former wartime comfort women, to restore their
honor, and to demonstrate Japans strong respect for women.[38]

The AWF announced three programs for former comfort women who applied for assistance: (1) an
atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical and welfare
support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology
from the Japanese Prime Minister to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of March 2006, the AWF provided 700
million (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380
million (approximately $3.8 million) in Indonesia; and 242 million (approximately $2.4 million) in
the Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding
for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners claims for official apology and other
forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the Executive

Department has the exclusive prerogative to
determine whether to espouse petitioners claims
against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political question doctrine. There
the US Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving
 it, or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on question.

In Taada v. Cuenco,[40] we held that 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 the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure."

Certain types of cases often have been found to present political questions.[41] One such category
involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of
our government is committed by the Constitution to the executive and legislative--'the political'--
departments of the government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision."[42] The US Supreme Court has further cautioned that
decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements.[44]However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that [t]he
President is the sole organ of the nation in its external relations, and its sole representative with foreign
relations.
 It is quite apparent that if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success for
our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Punos dissent in Secretary of Justice v. Lantion:[48]

x x x The conduct of foreign relations is full of complexities and consequences,

sometimes with life and death significance to the nation especially in times of war. It can
only be entrusted to that department of government which can act on the basis of the
best available information and can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data.In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a
plethora of other problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners cause would be inimical to our
countrys foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the Executive Departments determination would
mean an assessment of the foreign policy judgments by a coordinate political branch to which authority
to make that judgment has been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was without authority to
negotiate the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when
negotiating peace accords and settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips', in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political
considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide, international settlements generally wipe out
the underlying private claims, thereby terminating any recourse under domestic law. In Ware v.
Hylton,[50] a case brought by a British subject to recover a debt confiscated by
the Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after
peace is concluded, neither the matter in dispute, nor the conduct of either party, during
the war, can ever be revived, or brought into contest again. All violences, injuries, or
damages sustained by the government, or people of either, during the war, are buried in
oblivion; and all those things are implied by the very treaty of peace; and therefore not
necessary to be expressed. Hence it follows, that the restitution of, or compensation for,
British property confiscated, or extinguished, during the war, by any of the United States,
could only be provided for by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly

nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one

country against the government of another country are sources of friction between the
two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed.
796 (1942). To resolve these difficulties, nations have often entered into agreements
settling the claims of their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of another
are established international practice reflecting traditional international theory. L. Henkin,
Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign authority to settle the claims of its
nationals against foreign countries. x x x Under such agreements, the President has
agreed to renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by the United
States claimants themselves, since a claimant's only hope of obtaining any payment at
all might lie in having his Government negotiate a diplomatic settlement on his behalf.
But it is also undisputed that the United States has sometimes disposed of the claims of
its citizens without their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation as a whole.
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of
the United States 213 (1965) (President may waive or settle a claim against a foreign
state x x x [even] without the consent of the [injured] national). It is clear that the practice
of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for
the complete atonement of the suffering caused by Japanese aggression during the war, not for the
payment of adequate reparations, but for security purposes. The treaty sought to prevent the spread of
communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave labor during the
war.[52] In a consolidated case in the Northern District of California,[53] the court dismissed the lawsuits
filed, relying on the 1951 peace treaty with Japan,[54] because of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an unacceptable
impediment to a lasting peace:

Reparation is usually the most controversial aspect of peacemaking.

The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands a Japan presently
reduced to four home islands which are unable to produce the food its
people need to live, or the raw materials they need to work. x x x

The policy of the United States that Japanese liability for reparations should be sharply
limited was informed by the experience of six years of United States-led occupation
of Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP)
for the region, General Douglas MacArthur, confiscated Japanese assets in conjunction
with the task of managing the economic affairs of the vanquished nation and with a view
to reparations payments. It soon became clear that Japan's financial condition
would render any aggressive reparations plan an exercise in futility. Meanwhile,
the importance of a stable, democratic Japan as a bulwark to communism in the
region increased. At the end of 1948, MacArthur expressed the view that [t]he use of
reparations as a weapon to retard the reconstruction of a viable economy in Japan
should be combated with all possible means and recommended that the reparations
issue be settled finally and without delay.

That this policy was embodied in the treaty is clear not only from the negotiations history
but also from the Senate Foreign Relations Committee report recommending approval
of the treaty by the Senate. The committee noted, for example:

Obviously insistence upon the payment of reparations in any proportion

commensurate with the claims of the injured countries and their
nationals would wreck Japan's economy, dissipate any credit that it may
possess at present, destroy the initiative of its people, and create misery
 and chaos in which the seeds of discontent and communism would
flourish. In short, [it] would be contrary to the basic purposes and policy
of x x x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle and
particularly here, where such an extraordinary length of time has lapsed between the treatys conclusion
and our consideration the Executive must be given ample discretion to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.

The Philippines is not under any international

obligation to espouse petitioners claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade a government to bring a
claim on the individuals behalf.[55] Even then, it is not the individuals rights that are being asserted, but
rather, the states own rights. Nowhere is this position more clearly reflected than in the dictum of the
Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right to ensure, in the person of its subjects, respect for the rules of international law. The
question, therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes, is irrelevant from
this standpoint. Once a State has taken up a case on behalf of one of its subjects before
an international tribunal, in the eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the right is within
the absolute discretion of states, and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the particular claim.[57] As clearly
stated by the ICJ in
Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent
it thinks fit, for it is its own right that the State is asserting. Should the natural or
legal person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is
resort to national law, if means are available, with a view to furthering their cause or
obtaining redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to demand the
performance of that obligation, and clothe the right with corresponding sanctions.
 However, all these questions remain within the province of municipal law and do not
affect the position internationally.[58] (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of
which may be determined by considerations of a political or other nature, unrelated to the particular case.

The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support
this traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the
State,[59] (ii) affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign
prerogative" of the State;[60] and (iii) stress that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals
and act on his/her behalf when rights are injured.[62] However, at present, there is no sufficient evidence
to establish a general international obligation for States to exercise diplomatic protection of their own
nationals abroad.[63] Though, perhaps desirable, neither state practice nor opinio juris has evolved in
such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means
of enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well
as legally prohibited under contemporary international law.[65] However, petitioners take quite a
theoretical leap in claiming that these proscriptions automatically imply that that the Philippines is under a
non-derogable obligation to prosecute international crimes, particularly since petitioners do not demand
the imputation of individual criminal liability, but seek to recover monetary reparations from the state of
Japan. Absent the consent of states, an applicable treaty regime, or a directive by the Security Council,
there is no non-derogable duty to institute proceedings against Japan. Indeed, precisely because of
states reluctance to directly prosecute claims against another state, recent developments
support the modern trend to empower individuals to directly participate in suits against
perpetrators of international crimes.[66]Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against humanity and the strong policy arguments
warranting such a rule, the practice of states does not yet support the present existence of an obligation
to prosecute international crimes.[67] Of course a customary duty of prosecution is ideal, but we cannot
find enough evidence to reasonably assert its existence. To the extent that any state practice in this area
is widespread, it is in the practice of granting amnesties, immunity, selective prosecution, or de
facto impunity to those who commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if
we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to
show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describing obligations owed by States towards the community of states as a whole. The concept was
recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis--vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law others are conferred by international instruments of
a universal or quasi-universal character.

The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often the case, the reality is
neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full potential remains to be realized in practice.[69]
The term is closely connected with the international law concept of jus cogens. In international law, the
term jus cogens (literally, compelling law) refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms began to
attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article,
Forbidden Treaties in International Law.[72] The recognition of jus cogens gained even more force in the
1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).[73] Though there was a consensus that certain international norms had attained the status of jus
cogens,[74] the ILC was unable to reach a consensus on the proper criteria for identifying peremptory
norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in
1963 that there is not as yet any generally accepted criterion by which to identify a general rule of
international law as having the character of jus cogens.[75] In a commentary accompanying the draft
convention, the ILC indicated that the prudent course seems to be to x x x leave the full content of this
rule to be worked out in State practice and in the jurisprudence of international tribunals.[76] Thus,
while the existence of jus cogens in international law is undisputed, no consensus exists on its
substance,[77] beyond a tiny core of principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We are
also deeply concerned that, in apparent contravention of fundamental principles of law, the petitioners
appear to be without a remedy to challenge those that have offended them before appropriate
fora. Needless to say, our government should take the lead in protecting its citizens against violation of
their fundamental human rights. Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only the power to urge and exhort the Executive
Department to take up petitioners cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.
 EN BANC

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General Josephus Q.

Ramas and Elizabeth Dimaano, respondents.

DECISION
CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of
the Sandiganbayan (First Division)[1] dated 18 November 1991 and 25 March 1992 in Civil Case
No. 0037. The first Resolution dismissed petitioners Amended Complaint and ordered the return
of the confiscated items to respondent Elizabeth Dimaano, while the second Resolution denied
petitioners Motion for Reconsideration. Petitioner prays for the grant of the reliefs sought in its
Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan
(First Division) for further proceedings allowing petitioner to complete the presentation of its
evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then
President Corazon C. Aquino issued Executive Order No. 1 (EO No. 1) creating the Presidential
Commission on Good Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all
ill-gotten wealth of former President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates. EO No. 1 vested the PCGG with the power (a) to conduct
investigation as may be necessary in order to accomplish and carry out the purposes of this
order and the power (h) to promulgate such rules and regulations as may be necessary to carry
out the purpose of this order. Accordingly, the PCGG, through its then Chairman Jovito R.
Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.[2]
Based on its mandate, the AFP Board investigated various reports of alleged unexplained
wealth of respondent Major General Josephus Q. Ramas (Ramas). On 27 July 1987, the AFP
Board issued a Resolution on its findings and recommendation on the reported unexplained
wealth of Ramas. The relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located at 15-
Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu
City. The lot has an area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly at P700,000.00.

The equipment/items and communication facilities which were found in the premises of
Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas were all
covered by invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC,
PA. These items could not have been in the possession of Elizabeth Dimaano if not given for
her use by respondent Commanding General of the Philippine Army.

Aside from the military equipment/items and communications equipment, the raiding team was
also able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the
house of Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army,
stationed at Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays and sleeps in the alleged
house of Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives,
Elizabeth Dimaano embraces and kisses respondent. That on February 25, 1986, a person who
rode in a car went to the residence of Elizabeth Dimaano with four (4) attache cases filled with
money and owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of
income and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of respondent, he
being the Commanding General of the Philippine Army. It is also impossible for Elizabeth
Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars for she had no
visible source of income.

This money was never declared in the Statement of Assets and Liabilities of respondent. There
was an intention to cover the existence of these money because these are all ill-gotten and
unexplained wealth.Were it not for the affidavits of the members of the Military Security Unit
assigned at Camp Eldridge, Los Baos, Laguna, the existence and ownership of these money
would have never been known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and
analysis by the Boards consultant. Although the amount of P2,870,000.00 and $50,000 US
Dollars were not included, still it was disclosed that respondent has an unexplained wealth
of P104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-
gotten and unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars.

V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act
and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully
Acquired Property.[3]

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No.
1379 (RA No. 1379) [4] against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an
Amended Complaint naming the Republic of the Philippines (petitioner), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended Complaint also impleaded Elizabeth
Dimaano (Dimaano) as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the
Philippine Army until 1986. On the other hand, Dimaano was a confidential agent of the Military
Security Unit, Philippine Army, assigned as a clerk-typist at the office of Ramas from 1 January
1978 to February 1979. The Amended Complaint further alleged that Ramas acquired funds,
assets and properties manifestly out of proportion to his salary as an army officer and his other
income from legitimately acquired property by taking undue advantage of his public office and/or
using his power, authority and influence as such officer of the Armed Forces of the Philippines
and as a subordinate and close associate of the deposed President Ferdinand Marcos.[5]
The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found
reasonable ground to believe that respondents have violated RA No. 1379.[6] The Amended
Complaint prayed for, among others, the forfeiture of respondents properties, funds and
equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory
Counterclaim to the Amended Complaint. In his Answer, Ramas contended that his property
consisted only of a residential house at La Vista Subdivision, Quezon City, valued at P700,000,
which was not out of proportion to his salary and other legitimate income. He denied ownership
of any mansion in Cebu City and the cash, communications equipment and other items
confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a
clerk-typist in the office of Ramas from January-November 1978 only, Dimaano claimed
ownership of the monies, communications equipment, jewelry and land titles taken from her
house by the Philippine Constabulary raiding team.
After termination of the pre-trial,[7] the court set the case for trial on the merits on 9-11
November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of
preparation for trial and the absence of witnesses and vital documents to support its case. The
court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order to
charge the delinquent properties with being subject to forfeiture as having been unlawfully
acquired by defendant Dimaano alone x x x.[8]
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with
petitioners presentation of evidence on the ground that the motion for leave to amend complaint
did not state when petitioner would file the amended complaint. The Sandiganbayan further
stated that the subject matter of the amended complaint was on its face vague and not related
to the existing complaint. The Sandiganbayan also held that due to the time that the case had
been pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the trial.
On 28 September 1989, during the continuation of the trial, petitioner manifested its inability
to proceed to trial because of the absence of other witnesses or lack of further evidence to
present. Instead, petitioner reiterated its motion to amend the complaint to conform to the
evidence already presented or to change the averments to show that Dimaano alone unlawfully
acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a year
mainly because of its many postponements. Moreover, petitioner would want the case to revert
to its preliminary stage when in fact the case had long been ready for trial. The Sandiganbayan
ordered petitioner to prepare for presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to present further
evidence. Giving petitioner one more chance to present further evidence or to amend the
complaint to conform to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The
Sandiganbayan, however, hinted that the re-setting was without prejudice to any action that
private respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to trial
because it had no further evidence to present. Again, in the interest of justice, the
Sandiganbayan granted petitioner 60 days within which to file an appropriate pleading. The
Sandiganbayan, however, warned petitioner that failure to act would constrain the court to take
drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino.[9] The Court held in Migrino that the PCGG does not have jurisdiction to investigate
and prosecute military officers by reason of mere position held without a showing that they are
subordinates of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of
which states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without

pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered
returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has
primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as
the evidence warrants. This case is also referred to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano in connection
herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.
 Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme
Court in Cruz, Jr. v. Sandiganbayan[10] and Republic v. Migrino[11] which involve the
same issues.

(2.) No previous inquiry similar to preliminary investigations in criminal cases was

conducted against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case against
him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONERS EVIDENCE CANNOT MAKE A CASE FOR
FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN
RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS
WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING
BEEN RENDERED PRIOR TO THE COMPLETION OF THE
PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING
OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v.
SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO,
189 SCRA 289, NOTWITHSTANDING THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.

Migrino, supra, are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in Civil Case

No. 0037 was cured and/or waived by respondents with the filing
of their respective answers with counterclaim; and

3. The separate motions to dismiss were evidently improper considering

that they were filed after commencement of the presentation of the
 evidence of the petitioner and even before the latter was allowed
to formally offer its evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE

ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS
EVIDENCE.[12]

The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan[13] and Republic v. Migrino.[14]
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and
cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth
under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt
practices of AFP personnel, whether in the active service or retired. [15] The PCGG tasked the
AFP Board to make the necessary recommendations to appropriate government agencies on
the action to be taken based on its findings.[16] The PCGG gave this task to the AFP Board
pursuant to the PCGGs power under Section 3 of EO No. 1 to conduct investigation as may be
necessary in order to accomplish and to carry out the purposes of this order. EO No. 1 gave the
PCGG specific responsibilities, to wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in regard to
the following matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the takeover and
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/ or using their powers, authority, influence,
connections or relationship.

(b) The investigation of such cases of graft and corruption as the President may assign
to the Commission from time to time.

x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and
corrupt practices of AFP personnel who fall under either of the two categories mentioned in
Section 2 of EO No. 1. These are: (1) AFP personnel who have accumulated ill-gotten wealth
during the administration of former President Marcos by being the latters immediate family,
relative, subordinate or close associate, taking undue advantage of their public office or using
their powers, influence x x x;[17] or (2) AFP personnel involved in other cases of graft and
corruption provided the President assigns their cases to the PCGG.[18]
Petitioner, however, does not claim that the President assigned Ramas case to the
PCGG. Therefore, Ramas case should fall under the first category of AFP personnel before the
PCGG could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a
subordinate of former President Marcos because of his position as the Commanding General of
the Philippine Army. Petitioner claims that Ramas position enabled him to receive orders directly
from his commander-in-chief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a subordinate of former President Marcos in the sense
contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a subordinate as
this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close
association with former President Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is contemplated
within the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President Ferdinand E. Marcos, his immediate
family, relatives, and close associates both here and abroad.

EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos
and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.

Applying the rule in statutory construction known as ejusdem generis that is-

[W]here general words follow an enumeration of persons or things by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to
be held as applying only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black
on Interpretation of Laws, 2ndEd., 203].

[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close association
with former President Marcos and/or his wife, similar to the immediate family member,
relative, and close associate in EO No. 1 and the close relative, business associate,
dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official or
employee during the administration of former President Marcos. There must be a prima facie
showing that the respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife. (Emphasis supplied)

Ramas position alone as Commanding General of the Philippine Army with the rank of
Major General[19] does not suffice to make him a subordinate of former President Marcos for
purposes of EO No. 1 and its amendments. The PCGG has to provide a prima facie showing
that Ramas was a close associate of former President Marcos, in the same manner that
business associates, dummies, agents or nominees of former President Marcos were close to
him. Such close association is manifested either by Ramas complicity with former President
Marcos in the accumulation of ill-gotten wealth by the deposed President or by former President
Marcos acquiescence in Ramas own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not convince
us. Petitioner argues that unlike in Migrino, the AFP Board Resolution in the instant case states
that the AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in
relation to RA No. 1379. Petitioner asserts that there is a presumption that the PCGG was
acting within its jurisdiction of investigating crony-related cases of graft and corruption and that
Ramas was truly a subordinate of the former President. However, the same AFP Board
Resolution belies this contention. Although the Resolution begins with such statement, it ends
with the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried
for violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act
and RA 1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully
Acquired Property.[20]

Thus, although the PCGG sought to investigate and prosecute private respondents under EO
Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and
1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1
and its amendments proves fatal to petitioners case. EO No. 1 created the PCGG for a specific
and limited purpose, and necessarily its powers must be construed to address such specific and
limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not show
that the properties Ramas allegedly owned were accumulated by him in his capacity as a
subordinate of his commander-in-chief. Petitioner merely enumerated the properties Ramas
allegedly owned and suggested that these properties were disproportionate to his salary and
other legitimate income without showing that Ramas amassed them because of his close
association with former President Marcos. Petitioner, in fact, admits that the AFP Board
resolution does not contain a finding that Ramas accumulated his wealth because of his close
association with former President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of
the Philippines did not categorically find a prima facie evidence showing that respondent
Ramas unlawfully accumulated wealth by virtue of his close association or relation with
former President Marcos and/or his wife, it is submitted that such omission was not
fatal. The resolution of the Anti-Graft Board should be read in the context of the law creating the
same and the objective of the investigation which was, as stated in the above, pursuant to
Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-
a;[21] (Emphasis supplied)

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-
gotten wealth was accumulated by a subordinate of former President Marcos that vests
jurisdiction on PCGG. EO No. 1[22] clearly premises the creation of the PCGG on the urgent
need to recover all ill-gotten wealth amassed by former President Marcos, his immediate family,
relatives, subordinates and close associates. Therefore, to say that such omission was not fatal
is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under the
jurisdiction of the PCGG pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[26]

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2
and 3 of Executive Order No. 14, shows what the authority of the respondent PCGG to
investigate and prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-gotten
wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the take-over or
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority
and influence, connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the acquisition of
said ill-gotten wealth as contemplated under Section 2(a) of Executive Order No.
1.

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling
under the foregoing categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of
Executive Order No. 1. Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating agencies such as the provincial and
city prosecutors, their assistants, the Chief State Prosecutor and his assistants and the
state prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute
forfeiture petitions not falling under EO No. 1 and its amendments. The preliminary investigation
of unexplained wealth amassed on or before 25 February 1986 falls under the jurisdiction of the
Ombudsman, while the authority to file the corresponding forfeiture petition rests with the
Solicitor General.[27] The Ombudsman Act or Republic Act No. 6770 (RA No. 6770) vests in the
Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986.[28]
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite
the absence of a prima facie finding that Ramas was a subordinate of former President Marcos.
The petition for forfeiture filed with the Sandiganbayan should be dismissed for lack of authority
by the PCGG to investigate respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board Resolution and even the Amended
Complaint state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should
have recommended Ramas case to the Ombudsman who has jurisdiction to conduct the
preliminary investigation of ordinary unexplained wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG
must also be enjoined from proceeding with the case, without prejudice to any action that may
be taken by the proper prosecutory agency. The rule of law mandates that an agency of
government be allowed to exercise only the powers granted to it.

Petitioners argument that private respondents have waived any defect in the filing of the
forfeiture petition by submitting their respective Answers with counterclaim deserves no merit as
well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to
waive in the first place. The PCGG cannot exercise investigative or prosecutorial powers never
granted to it. PCGGs powers are specific and limited. Unless given additional assignment by the
President, PCGGs sole task is only to recover the ill-gotten wealth of the Marcoses, their
relatives and cronies.[29] Without these elements, the PCGG cannot claim jurisdiction over a
case.
Private respondents questioned the authority and jurisdiction of the PCGG to investigate
and prosecute their cases by filing their Motion to Dismiss as soon as they learned of the
pronouncement of the Court in Migrino. This case was decided on 30 August 1990, which
explains why private respondents only filed their Motion to Dismiss on 8 October
1990.Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of
the proceeding.[30] Thus, we hold that there was no waiver of jurisdiction in this case. Jurisdiction
is vested by law and not by the parties to an action.[31]
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to
conduct the preliminary investigation. The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the Solicitor General may file the
forfeiture petition with the Sandiganbayan.[32] The right of the State to forfeit unexplained wealth
under RA No. 1379 is not subject to prescription, laches or estoppel.[33]

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before
completion of the presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find that
petitioner has only itself to blame for non-completion of the presentation of its evidence. First,
this case has been pending for four years before the Sandiganbayan dismissed it. Petitioner
filed its Amended Complaint on 11 August 1987, and only began to present its evidence on 17
April 1989. Petitioner had almost two years to prepare its evidence. However, despite this
sufficient time, petitioner still delayed the presentation of the rest of its evidence by filing
numerous motions for postponements and extensions. Even before the date set for the
presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for Leave to Amend the
Complaint.[34]The motion sought to charge the delinquent properties (which comprise most of
petitioners evidence) with being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x.
The Sandiganbayan, however, refused to defer the presentation of petitioners evidence
since petitioner did not state when it would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of evidence on 28-29 September and 9-
11 October 1989, giving petitioner ample time to prepare its evidence. Still, on 28 September
1989, petitioner manifested its inability to proceed with the presentation of its evidence. The
Sandiganbayan issued an Order expressing its view on the matter, to wit:

The Court has gone through extended inquiry and a narration of the above events because this
case has been ready for trial for over a year and much of the delay hereon has been due to the
inability of the government to produce on scheduled dates for pre-trial and for trial documents
and witnesses, allegedly upon the failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that this Court has been held to
task in public about its alleged failure to move cases such as this one beyond the preliminary
stage, when, in view of the developments such as those of today, this Court is now faced with a
situation where a case already in progress will revert back to the preliminary stage, despite a
five-month pause where appropriate action could have been undertaken by the plaintiff
Republic.[35]

On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary
investigation on the unexplained wealth of private respondents as mandated by RA No.
1379.[36]The PCGG prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and scheduled the presentation of
evidence on 26-29 March 1990. However, on the scheduled date, petitioner failed to inform the
court of the result of the preliminary investigation the PCGG supposedly conducted. Again, the
Sandiganbayan gave petitioner until 18 May 1990 to continue with the presentation of its
evidence and to inform the court of what lies ahead insofar as the status of the case is
concerned x x x.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11
July 1990, petitioner filed its Re-Amended Complaint.[38] The Sandiganbayan correctly observed
that a case already pending for years would revert to its preliminary stage if the court were to
accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure to
complete the presentation of its evidence. The Sandiganbayan gave petitioner more than
sufficient time to finish the presentation of its evidence. The Sandiganbayan overlooked
petitioners delays and yet petitioner ended the long-string of delays with the filing of a Re-
Amended Complaint, which would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate and
prosecute the case against private respondents. This alone would have been sufficient legal
basis for the Sandiganbayan to dismiss the forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion
of the presentation of petitioners evidence.

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from
Dimaanos house as illegally seized and therefore inadmissible in evidence. This issue bears a
significant effect on petitioners case since these properties comprise most of petitioners
evidence against private respondents. Petitioner will not have much evidence to support its case
against private respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search
warrant captioned Illegal Possession of Firearms and Ammunition. Dimaano was not present
during the raid but Dimaanos cousins witnessed the raid. The raiding team seized the items
detailed in the seizure receipt together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two magazines; 40 rounds of 5.56
ammunition; one pistol, caliber .45; communications equipment, cash consisting of P2,870,000
and US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search
and seizure on March 3, 1986 or five days after the successful EDSA revolution.[39]Petitioner
argues that a revolutionary government was operative at that time by virtue of Proclamation No.
1 announcing that President Aquino and Vice President Laurel were taking power in the name
and by the will of the Filipino people.[40] Petitioner asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private
respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search applies
only beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner
contends that all rights under the Bill of Rights had already reverted to its embryonic stage at
the time of the search. Therefore, the government may confiscate the monies and items taken
from Dimaano and use the same in evidence against her since at the time of their seizure,
private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President
Aquinos Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was done in defiance
of the provisions of the 1973 Constitution.[41] The resulting government was indisputably a
revolutionary government bound by no constitution or legal limitations except treaty obligations
that the revolutionary government, as the de jure government in the Philippines, assumed under
international law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill of
Rights of the 1973 Constitution during the interregnum, that is, after the actual and effective
take-over of power by the revolutionary government following the cessation of resistance by
loyalist forces up to 24 March 1986 (immediately before the adoption of the Provisional
Constitution); and (2) whether the protection accorded to individuals under the International
Covenant on Civil and Political Rights (Covenant) and the Universal Declaration of Human
Rights (Declaration) remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant
and the Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no
municipal law higher than the directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights
because there was neither a constitution nor a Bill of Rights during the interregnum. As the
Court explained in Letter of Associate Justice Reynato S. Puno:[42]

A revolution has been defined as the complete overthrow of the established government in any
country or state by those who were previously subject to it or as a sudden, radical and
fundamental change in the government or political system, usually effected with violence or at
least some acts of violence. In Kelsen's book, General Theory of Law and State, it is defined as
that which occurs whenever the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself.

It was through the February 1986 revolution, a relatively peaceful one, and more popularly
known as the people power revolution that the Filipino people tore themselves away from an
existing regime. This revolution also saw the unprecedented rise to power of the Aquino
government.

From the natural law point of view, the right of revolution has been defined as an inherent right
of a people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or are so obstructed as to be
unavailable. It has been said that the locus of positive law-making power lies with the people of
the state and from there is derived the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution.

xxx

It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution
as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the
1986 presidential election. Thus it can be said that the organization of Mrs. Aquinos
Government which was met by little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the
legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis supplied)

To hold that the Bill of Rights under the 1973 Constitution remained operative during the
interregnum would render void all sequestration orders issued by the Philippine Commission on
Good Government (PCGG) before the adoption of the Freedom Constitution. The sequestration
orders, which direct the freezing and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and search and seizure clauses
of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary
government bound by no constitution. No one could validly question the sequestration orders as
violative of the Bill of Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom Constitution, the sequestered
companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,[43] petitioner Baseco, while conceding there was no Bill of Rights during the
interregnum, questioned the continued validity of the sequestration orders upon adoption of the
Freedom Constitution in view of the due process clause in its Bill of Rights. The Court ruled that
the Freedom Constitution, and later the 1987 Constitution, expressly recognized the validity of
sequestration orders, thus:

If any doubt should still persist in the face of the foregoing considerations as to the validity and
propriety of sequestration, freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue them have received
constitutional approbation and sanction. As already mentioned, the Provisional or Freedom
Constitution recognizes the power and duty of the President to enact measures to achieve the
mandate of the people to . . . (r)ecover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people through orders of
sequestration or freezing of assets or accounts. And as also already adverted to, Section 26,
Article XVIII of the 1987 Constitution treats of, and ratifies the authority to issue sequestration or
freeze orders under Proclamation No. 3 dated March 25, 1986.

The framers of both the Freedom Constitution and the 1987 Constitution were fully aware
that the sequestration orders would clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the validity of the sequestration
orders. The following discourse by Commissioner Joaquin G. Bernas during the deliberations of
the Constitutional Commission is instructive:

FR. BERNAS: Madam President, there is something schizophrenic about the arguments in
defense of the present amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta
University Foundation, of which all of us have been given a copy. On the one hand, he
argues that everything the Commission is doing is traditionally legal. This is repeated
by Commissioner Romulo also. Minister Salonga spends a major portion of his lecture
developing that argument. On the other hand, almost as an afterthought, he says that
in the end what matters are the results and not the legal niceties, thus suggesting that
the PCGG should be allowed to make some legal shortcuts, another word for niceties
or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special
protection? The answer is clear. What they are doing will not stand the test of
ordinary due process, hence they are asking for protection, for
exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but let us
not say grandes malos, grande y malos remedios. That is not an allowable
extrapolation. Hence, we should not give the exceptions asked for, and let me
elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to
hasten constitutional normalization. Very much at the heart of the constitutional
normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be hypocritical; that
would be a repetition of Marcosian protestation of due process and rule of law. The
New Society word for that is backsliding. It is tragic when we begin to backslide even
before we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The
committee report asks for extraordinary exceptions from the Bill of Rights for six
months after the convening of Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the
committee report is asking for is that we should allow the new government to acquire
the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the
vice begin to think that they have a vested right to its practice, and they will fight tooth
and nail to keep the franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an
argument that is very disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated verbatim by another staunch
 Christian like Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of
Rights on the auction block. If the price is right, the search and seizure clause will be
sold. Open your Swiss bank account to us and we will award you the search and
seizure clause. You can keep it in your private safe.
Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the ransom
price is paid and the ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively revolving about either
argument. The Bill of Rights is not for sale to the highest bidder nor can it be used to
ransom captive dollars. This nation will survive and grow strong, only if it would
become convinced of the values enshrined in the Constitution of a price that is beyond
monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete
all of Section 8 of the committee report and allow the new Constitution to take effect in
full vigor. If Section 8 is deleted, the PCGG has two options. First, it can pursue the
Salonga and the Romulo argument that what the PCGG has been doing has been
completely within the pale of the law. If sustained, the PCGG can go on and should be
able to go on, even without the support of Section 8. If not sustained, however, the
PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me
conclude with what another Christian replied when asked to toy around with the law.
From his prison cell, Thomas More said, "I'll give the devil benefit of law for my nations
safety sake. I ask the Commission to give the devil benefit of law for our nations sake.
And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)

Despite the impassioned plea by Commissioner Bernas against the amendment

excepting sequestration orders from the Bill of Rights, the Constitutional Commission still
adopted the amendment as Section 26,[44] Article XVIII of the 1987 Constitution. The framers of
the Constitution were fully aware that absent Section 26, sequestration orders would not stand
the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the
interregnum, absent a constitutional provision excepting sequestration orders from such Bill of
Rights, would clearly render all sequestration orders void during the interregnum. Nevertheless,
even during the interregnum the Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government, assumed
responsibility for the States good faith compliance with the Covenant to which the Philippines is
a signatory. Article 2(1) of the Covenant requires each signatory State to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights[45] recognized in the
present Covenant. Under Article 17(1) of the Covenant, the revolutionary government had the
duty to insure that [n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2)
that [n]o one shall be arbitrarily deprived of his property. Although the signatories to the
Declaration did not intend it as a legally binding document, being only a declaration, the Court
has interpreted the Declaration as part of the generally accepted principles of international law
and binding on the State.[46] Thus, the revolutionary government was also obligated under
international law to observe the rights[47] of individuals under the Declaration.
 The revolutionary government did not repudiate the Covenant or the Declaration during the
interregnum. Whether the revolutionary government could have repudiated all its obligations
under the Covenant or the Declaration is another matter and is not the issue here. Suffice it to
say that the Court considers the Declaration as part of customary international law, and that
Filipinos as human beings are proper subjects of the rules of international law laid down in the
Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the
revolutionary government could not escape responsibility for the States good faith compliance
with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher municipal law
that, if contravened, rendered such directives and orders void. The Provisional Constitution
adopted verbatim the Bill of Rights of the 1973 Constitution.[48] The Provisional Constitution
served as a self-limitation by the revolutionary government to avoid abuses of the absolute
powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed, directives and orders
issued by government officers were valid so long as these officers did not exceed the authority
granted them by the revolutionary government. The directives and orders should not have also
violated the Covenant or the Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary government did not repudiate
it. The warrant, issued by a judge upon proper application, specified the items to be searched
and seized. The warrant is thus valid with respect to the items specifically described in the
warrant.
However, the Constabulary raiding team seized items not included in the warrant. As
admitted by petitioners witnesses, the raiding team confiscated items not included in the
warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons.
What else, aside from the weapons, were seized from the house of Miss
Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars,
some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house
of Elizabeth Dimaano. Do you know the reason why your team also seized
other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed that
the reason why they also brought the other items not included in the search
warrant was because the money and other jewelries were contained in
attach cases and cartons with markings Sony Trinitron, and I think three (3)
vaults or steel safes. Believing that the attach cases and the steel safes
were containing firearms, they forced open these containers only to find out
that they contained money.

xxx
 Q. You said you found money instead of weapons, do you know the reason why
your team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him decided
to bring along also the money because at that time it was already dark and
they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.[49]

Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in connection with this case was
applied before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of
five (5) baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.

xxx

AJ AMORES

Q. Before you applied for a search warrant, did you conduct surveillance in the
house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU
elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss
Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other
properties or contraband which could be found in the residence of Miss
Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for
instance, the communications equipment and money. However, I did not
include that in the application for search warrant considering that we have
not established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe that
only weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-
16 and how many ammunition?
A. Forty, sir.
 Q. And this became the subject of your complaint with the issuing Court, with the
fiscals office who charged Elizabeth Dimaano for Illegal Possession of
Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant,
like for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring
along also the jewelries and other items, sir. I do not really know where it
was taken but they brought along also these articles. I do not really know
their reason for bringing the same, but I just learned that these were taken
because they might get lost if they will just leave this behind.

xxx

Q. How about the money seized by your raiding team, they were not also included
in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attach cases. These attach cases were
suspected to be containing pistols or other high powered firearms, but in the
course of the search the contents turned out to be money. So the team
leader also decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your
raiding team, like Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.[51]
It is obvious from the testimony of Captain Sebastian that the warrant did not include the
monies, communications equipment, jewelry and land titles that the raiding team
confiscated.The search warrant did not particularly describe these items and the raiding team
confiscated them on its own authority. The raiding team had no legal basis to seize these items
without showing that these items could be the subject of warrantless search and
seizure.[52] Clearly, the raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are contraband per
se,[53] and they are not, they must be returned to the person from whom the raiding seized
them. However, we do not declare that such person is the lawful owner of these items, merely
that the search and seizure warrant could not be used as basis to seize and withhold these
items from the possessor. We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037,
remanding the records of this case to the Ombudsman for such appropriate action as the
evidence may warrant, and referring this case to the Commissioner of the Bureau of Internal
Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.
SO ORDERED.
 EN BANC

BRITISH AMERICAN TOBACCO, G.R. No. 163583

Petitioner,
Present:

Puno, C.J.,
Quisumbing,
Ynares-Santiago,
Carpio,
Austria-Martinez,
Corona,
- versus - Carpio Morales,
Tinga,
Chico-Nazario,
Velasco, Jr.,
Nachura,
Leonardo-De Castro,
Brion,
Peralta, and
Bersamin, JJ.
JOSE ISIDRO N. CAMACHO,
in his capacity as Secretary of
the Department of Finance and
GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of
the Bureau of Internal Revenue,
Respondents.
PHILIP MORRIS PHILIPPINES
MANUFACTURING, INC.,
FORTUNE TOBACCO, CORP., Promulgated:
MIGHTY CORPOR.A.TION, and
JT INTERNATIONAL, S.A.,
Respondents-in-Intervention. April 15, 2009

x ---------------------------------------------------------------------------------------- x

RESOLUTION

YNARES-SANTIAGO, J.:

On August 20, 2008, the Court rendered a Decision partially granting the petition in this
case, viz:
 WHEREFORE, the petition is PARTIALLY GRANTED and the decision
of the Regional Trial Court of Makati, Branch 61, in Civil Case No. 03-1032,
is AFFIRMED with MODIFICATION. As modified, this Court declares that:

(1) Section 145 of the NIRC, as amended by Republic Act No. 9334,
is CONSTITUTIONAL; and that

(2) Section 4(B)(e)(c), 2nd paragraph of Revenue Regulations No. 1-97, as

amended by Section 2 of Revenue Regulations 9-2003, and Sections II(1)(b),
II(4)(b), II(6), II(7), III (Large Tax Payers Assistance Division II) II(b) of Revenue
Memorandum Order No. 6-2003, insofar as pertinent to cigarettes packed by
machine, are INVALID insofar as they grant the BIR the power to reclassify or
update the classification of new brands every two years or earlier.

SO ORDERED.

In its Motion for Reconsideration, petitioner insists that the assailed provisions (1) violate
the equal protection and uniformity of taxation clauses of the Constitution, (2) contravene
Section 19,[1] Article XII of the Constitution on unfair competition, and (3) infringe the
constitutional provisions on regressive and inequitable taxation. Petitioner further argues that
assuming the assailed provisions are constitutional, petitioner is entitled to a downward
reclassification of Lucky Strike from the premium-priced to the high-priced tax bracket.

The Court is not persuaded.

The assailed law does not violate the equal

protection and uniformity of taxation clauses.

Petitioner argues that the classification freeze provision violates the equal protection and
uniformity of taxation clauses because Annex D brands are taxed based on their 1996 net retail
prices while new brands are taxed based on their present day net retail prices. Citing Ormoc
Sugar Co. v. Treasurer of Ormoc City,[2] petitioner asserts that the assailed provisions accord a
special or privileged status to Annex D brands while at the same time discriminate against other
brands.

These contentions are without merit and a rehash of petitioners previous arguments before this
Court. As held in the assailed Decision, the instant case neither involves a suspect classification
nor impinges on a fundamental right. Consequently, the rational basis test was properly applied
to gauge the constitutionality of the assailed law in the face of an equal protection challenge. It
has been held that in the areas of social and economic policy, a statutory classification that
neither proceeds along suspect lines nor infringes constitutional rights must be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.[3] Under the rational basis test, it is sufficient that
the legislative classification is rationally related to achieving some legitimate State interest. As
the Court ruled in the assailed Decision, viz:
 A legislative classification that is reasonable does not offend the
constitutional guaranty of the equal protection of the laws. The classification is
considered valid and reasonable provided that: (1) it rests on substantial
distinctions; (2) it is germane to the purpose of the law; (3) it applies, all things
being equal, to both present and future conditions; and (4) it applies equally to all
those belonging to the same class.

The first, third and fourth requisites are satisfied. The classification freeze
provision was inserted in the law for reasons of practicality and expediency. That
is, since a new brand was not yet in existence at the time of the passage of RA
8240, then Congress needed a uniform mechanism to fix the tax bracket of a
new brand. The current net retail price, similar to what was used to classify the
brands under Annex D as of October 1, 1996, was thus the logical and practical
choice. Further, with the amendments introduced by RA 9334, the freezing of the
tax classifications now expressly applies not just to Annex D brands but to newer
brands introduced after the effectivity of RA 8240 on January 1, 1997 and any
new brand that will be introduced in the future. (However, as will be discussed
later, the intent to apply the freezing mechanism to newer brands was already in
place even prior to the amendments introduced by RA 9334 to RA 8240.) This
does not explain, however, why the classification is frozen after its determination
based on current net retail price and how this is germane to the purpose of the
assailed law. An examination of the legislative history of RA 8240 provides
interesting answers to this question.

xxxx

From the foregoing, it is quite evident that the classification freeze

provision could hardly be considered arbitrary, or motivated by a hostile or
oppressive attitude to unduly favor older brands over newer brands. Congress
was unequivocal in its unwillingness to delegate the power to periodically adjust
the excise tax rate and tax brackets as well as to periodically resurvey and
reclassify the cigarette brands based on the increase in the consumer price index
to the DOF and the BIR. Congress doubted the constitutionality of such
delegation of power, and likewise, considered the ethical implications
thereof. Curiously, the classification freeze provision was put in place of the
periodic adjustment and reclassification provision because of the belief that the
latter would foster an anti-competitive atmosphere in the market. Yet, as it is, this
same criticism is being foisted by petitioner upon the classification freeze
provision.

To our mind, the classification freeze provision was in the main the result
of Congresss earnest efforts to improve the efficiency and effectivity of the tax
administration over sin products while trying to balance the same with other State
interests. In particular, the questioned provision addressed Congresss
administrative concerns regarding delegating too much authority to the DOF and
BIR as this will open the tax system to potential areas for abuse and
corruption. Congress may have reasonably conceived that a tax system which
would give the least amount of discretion to the tax implementers would address
the problems of tax avoidance and tax evasion.
 To elaborate a little, Congress could have reasonably foreseen that,
under the DOF proposal and the Senate Version, the periodic reclassification of
brands would tempt the cigarette manufacturers to manipulate their price levels
or bribe the tax implementers in order to allow their brands to be classified at a
lower tax bracket even if their net retail prices have already migrated to a higher
tax bracket after the adjustment of the tax brackets to the increase in the
consumer price index. Presumably, this could be done when a resurvey and
reclassification is forthcoming. As briefly touched upon in the Congressional
deliberations, the difference of the excise tax rate between the medium-priced
and the high-priced tax brackets under RA 8240, prior to its amendment, was
P3.36. For a moderately popular brand which sells around 100 million packs per
year, this easily translates to P336,000,000. The incentive for tax avoidance, if
not outright tax evasion, would clearly be present. Then again, the tax
implementers may use the power to periodically adjust the tax rate and reclassify
the brands as a tool to unduly oppress the taxpayer in order for the government
to achieve its revenue targets for a given year.

Thus, Congress sought to, among others, simplify the whole tax system
for sin products to remove these potential areas of abuse and corruption from
both the side of the taxpayer and the government. Without doubt,
the classification freeze provision was an integral part of this overall plan. This is
in line with one of the avowed objectives of the assailed law to simplify the tax
administration and compliance with the tax laws that are about to unfold in order
to minimize losses arising from inefficiencies and tax avoidance scheme, if not
outright tax evasion. RA 9334 did not alter this classification freeze provision of
RA 8240. On the contrary, Congress affirmed this freezing mechanism by
clarifying the wording of the law. We can thus reasonably conclude, as the
deliberations on RA 9334 readily show, that the administrative concerns in tax
administration, which moved Congress to enact the classification freeze
provision in RA 8240, were merely continued by RA 9334. Indeed, administrative
concerns may provide a legitimate, rational basis for legislative classification. In
the case at bar, these administrative concerns in the measurement and collection
of excise taxes on sin products are readily apparent as afore-discussed.

Aside from the major concern regarding the elimination of potential areas
for abuse and corruption from the tax administration of sin products, the
legislative deliberations also show that the classification freeze provision was
intended to generate buoyant and stable revenues for government. With the
frozen tax classifications, the revenue inflow would remain stable and the
government would be able to predict with a greater degree of certainty the
amount of taxes that a cigarette manufacturer would pay given the trend in its
sales volume over time. The reason for this is that the previously classified
cigarette brands would be prevented from moving either upward or downward
their tax brackets despite the changes in their net retail prices in the future and,
as a result, the amount of taxes due from them would remain
predictable. The classification freeze provision would, thus, aid in the revenue
planning of the government.

All in all, the classification freeze provision addressed Congresss

administrative concerns in the simplification of tax administration of sin products,
elimination of potential areas for abuse and corruption in tax collection, buoyant
 and stable revenue generation, and ease of projection of
revenues. Consequently, there can be no denial of the equal protection of the
laws since the rational-basis test is amply satisfied.

Moreover, petitioners contention that the assailed provisions violate the uniformity of
taxation clause is similarly unavailing. In Churchill v. Concepcion,[4] we explained that a tax is
uniform when it operates with the same force and effect in every place where the subject of it is
found.[5] It does not signify an intrinsic but simply a geographical uniformity. [6] A levy of tax is not
unconstitutional because it is not intrinsically equal and uniform in its operation. [7] The uniformity
rule does not prohibit classification for purposes of taxation.[8] As ruled in Tan v. Del Rosario,
Jr.:[9]

Uniformity of taxation, like the kindred concept of equal protection, merely

requires that all subjects or objects of taxation, similarly situated, are to be
treated alike both in privileges and liabilities (citations omitted). Uniformity does
not forfend classification as long as: (1) the standards that are used therefor are
substantial and not arbitrary, (2) the categorization is germane to achieve the
legislative purpose, (3) the law applies, all things being equal, to both present
and future conditions, and (4) the classification applies equally well to all those
belonging to the same class (citations omitted).[10]

In the instant case, there is no question that the classification freeze provision meets the
geographical uniformity requirement because the assailed law applies to all cigarette brands in
the Philippines. And, for reasons already adverted to in our August 20, 2008 Decision, the
above four-fold test has been met in the present case.

Petitioners reliance on Ormoc Sugar Co. is misplaced. In said case, the controverted
municipal ordinance specifically named and taxed only the Ormoc Sugar Company, and
excluded any subsequently established sugar central from its coverage. Thus, the ordinance
was found unconstitutional on equal protection grounds because its terms do not apply to future
conditions as well. This is not the case here. The classification freeze provision uniformly
applies to all cigarette brands whether existing or to be introduced in the market at some future
time. It does not purport to exempt any brand from its operation nor single out a brand for the
purpose of imposition of excise taxes.

At any rate, petitioners real disagreement lies with the legitimate State
interests. Although it concedes that the Court utilized the rationality test and that
the classification freeze provision was necessitated by several legitimate State interests,
however, it refuses to accept the justifications given by Congress for the classification freeze
provision. As we elucidated in our August 20, 2008 Decision, this line of argumentation revolves
around the wisdom and expediency of the assailed law which we cannot inquire into, much less
overrule. Equal protection is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices.[11] We reiterate, therefore, that petitioners remedy is with Congress and not
this Court.
The assailed provisions do not violate the
constitutional prohibition on unfair competition.

Petitioner asserts that the Court erroneously applied the rational basis test allegedly
because this test does not apply in a constitutional challenge based on a violation of Section 19,
Article XII of the Constitution on unfair competition. Citing Tatad v. Secretary of the Department
of Energy,[12] it argues that the classification freeze provision gives the brands under Annex D a
decisive edge because it constitutes a substantial barrier to the entry of prospective players;
that the Annex D provision is no different from the 4% tariff differential which we invalidated
in Tatad; that some of the new brands, like Astro, Memphis, Capri, L&M, Bowling Green,
Forbes, and Canon, which were introduced into the market after the effectivity of the assailed
law on January 1, 1997, were killed by Annex D brands because the former brands were
reclassified by the BIR to higher tax brackets; that the finding that price is not the only factor in
the market as there are other factors like consumer preference, active ingredients, etc. is
contrary to the evidence presented and the deliberations in Congress; that the classification
freeze provision will encourage predatory pricing in contravention of the constitutional
prohibition on unfair competition; and that the cumulative effect of the operation of
the classification freeze provision is to perpetuate the oligopoly of intervenors Philip Morris and
Fortune Tobacco in contravention of the constitutional edict for the State to regulate or prohibit
monopolies, and to disallow combinations in restraint of trade and unfair competition.

The argument lacks merit. While previously arguing that the rational basis test was not satisfied,
petitioner now asserts that this test does not apply in this case and that the proper matrix to
evaluate the constitutionality of the assailed law is the prohibition on unfair competition under
Section 19, Article XII of the Constitution. It should be noted that during the trial below, petitioner
did not invoke said constitutional provision as it relied solely on the alleged violation of the equal
protection and uniformity of taxation clauses. Well-settled is the rule that points of law, theories,
issues and arguments not adequately brought to the attention of the lower court will not be
ordinarily considered by a reviewing court as they cannot be raised for the first time on
appeal.[13] At any rate, even if we were to relax this rule, as previously stated, the evidence
presented before the trial court is insufficient to establish the alleged violation of the
constitutional proscription against unfair competition.

Indeed, in Tatad we ruled that a law which imposes substantial barriers to the entry and exit of
new players in our downstream oil industry may be struck down for being violative of Section 19,
Article XII of the Constitution.[14] However, we went on to say in that case that if they are
insignificant impediments, they need not be stricken down.[15] As we stated in our August 20,
2008 Decision, petitioner failed to convincingly prove that there is a substantial barrier to the
entry of new brands in the cigarette market due to the classification freeze provision. We further
observed that several new brands were introduced in the market after the assailed law went into
effect thus negating petitioners sweeping claim that the classification freeze provision is an
insurmountable barrier to the entry of new brands. We also noted that price is not the only factor
affecting competition in the market for there are other factors such as taste, brand loyalty, etc.
We see no reason to depart from these findings for the following reasons:

First, petitioner did not lay down the factual foundations, as supported by verifiable
documentary proof, which would establish, among others, the cigarette brands in competition
with each other; the current net retail prices of Annex D brands, as determined through a market
survey, to provide a sufficient point of comparison with those covered by the BIRs market
survey of new brands; and the causal connection with as well as the extent of the impact on the
competition in the cigarette market of the classification freeze provision. Other than petitioners
self-serving allegations and testimonial evidence, no adequate documentary evidence was
presented to substantiate its claims. Absent ample documentary proof, we cannot accept
petitioners claim that the classification freeze provision is an insurmountable barrier to the entry
of new players.

Second, we cannot lend credence to petitioners claim that it cannot produce cigarettes
that can compete with Marlboro and Philip Morris in the high-priced tax bracket. Except for its
self-serving testimonial evidence, no sufficient documentary evidence was presented to
substantiate this claim. The current net retail price, which is the basis for determining the tax
bracket of a cigarette brand, more or less consists of the costs of raw materials, labor,
advertising and profit margin. To a large extent, these factors are controllable by the
manufacturer, as such, the decision to enter which tax bracket will depend on the pricing
strategy adopted by the individual manufacturer. The same holds true for its claims that other
new brands, like Astro, Memphis, Capri, L&M, Bowling Green, Forbes, and Canon, were killed
by Annex D brands due to the effects of the operation of the classification freeze provision over
time. The evidence that petitioner presented before the trial court failed to substantiate the basis
for these claims.

Essentially, petitioner would want us to accept its conclusions of law without first laying
down the factual foundations of its arguments. This Court, which is not a trier of facts, cannot
take judicial notice of the factual premises of these arguments as petitioner now seems to
suggest. The evidence should have been presented before the trial court to allow it to examine
and determine for itself whether such factual premises, as supported by sufficient documentary
evidence, provide reasonable basis for petitioners conclusion that there arose an
unconstitutional unfair competition due to the operation of the classification freeze
provision. Petitioner should be reminded that it appealed this case from the adverse ruling of the
trial court directly to this Court on pure questions of law instead of resorting to the Court of
Appeals.

Third, Tatad is not applicable to the instant case. In Tatad, we found that the 4% tariff
differential between imported crude oil and imported refined petroleum products erects a high
barrier to the entry of new players because (1) it imposes an undue burden on new players to
spend billions of pesos to build refineries in order to compete with the old players, and (2) new
players, who opt not to build refineries, suffer from the huge disadvantage of increasing their
product cost by 4%.[16] The tariff was imposed on the raw materials uniformly used by the
players in the oil industry. Thus, the adverse effect on competition arising from this
discriminatory treatment was readily apparent. In contrast, the excise tax under the assailed law
is imposed based on the current net retail price of a cigarette brand. As previously explained,
the current net retail price is determined by the pricing strategy of the manufacturer. This Court
cannot simply speculate that the reason why a new brand cannot enter a specific tax bracket
and compete with the brands therein was because of the classification freeze provision, rather
than the manufacturers own pricing decision or some other factor solely attributable to the
manufacturer. Again, the burden of proof in this regard is on petitioner which it failed to muster.

Fourth, the finding in our August 20, 2008 Decision that price is not the only factor which
affects consumer behavior in the cigarette market is based on petitioners own evidence. On
cross-examination, petitioners witness admitted that notwithstanding the change in price, a
cigarette smoker may prefer the old brand because of its addictive formulation. [17] As a result,
even if we were to assume that the classification freeze provision distorts the pricing scheme of
the market players, it is not clear whether a substantial barrier to the entry of new players would
thereby be created because of these other factors affecting consumer behavior.

Last, the claim that the assailed provisions encourage predatory pricing was never
raised nor substantiated before the trial court. It is merely an afterthought and cannot be given
weight.

In sum, the totality of the evidence presented by petitioner before the trial court failed to
convincingly establish the alleged violation of the constitutional prohibition on unfair
competition. It is a basic postulate that the one who challenges the constitutionality of a law
carries the heavy burden of proof for laws enjoy a strong presumption of constitutionality as it is
an act of a co-equal branch of government. Petitioner failed to carry this burden.

The assailed law does not transgress the

constitutional provisions on regressive and
inequitable taxation.

Petitioner argues that the classification freeze provision is a form of regressive and
inequitable tax system which is proscribed under Article VI, Section 28(1)[18] of the
Constitution. It claims that people in equal positions should be treated alike. The use of different
tax bases for brands under Annex D vis--vis new brands is discriminatory, and thus, iniquitous.
Petitioner further posits that the classification freeze provision is regressive in character. It
asserts that the harmonization of revenue flow projections and ease of tax administration cannot
override this constitutional command.

We note that the points raised by petitioner with respect to alleged inequitable taxation
perpetuated by the classification freeze provision are a mere reformulation of its equal
protection challenge. As stated earlier, the assailed provisions do not infringe the equal
protection clause because the four-fold test is satisfied. In particular, the classification freeze
provision has been found to rationally further legitimate State interests consistent with rationality
review. Petitioners repackaged argument has, therefore, no merit.

Anent the issue of regressivity, it may be conceded that the assailed law imposes an
excise tax on cigarettes which is a form of indirect tax, and thus, regressive in character. While
there was an attempt to make the imposition of the excise tax more equitable by creating a four-
tiered taxation system where higher priced cigarettes are taxed at a higher rate, still, every
consumer, whether rich or poor, of a cigarette brand within a specific tax bracket pays the same
tax rate. To this extent, the tax does not take into account the persons ability to
pay. Nevertheless, this does not mean that the assailed law may be declared unconstitutional
for being regressive in character because the Constitution does not prohibit the imposition of
indirect taxes but merely provides that Congress shall evolve a progressive system of
taxation. As we explained in Tolentino v. Secretary of Finance:[19]

[R]egressivity is not a negative standard for courts to enforce. What Congress is

required by the Constitution to do is to "evolve a progressive system of taxation."
This is a directive to Congress, just like the directive to it to give priority to the
enactment of laws for the enhancement of human dignity and the reduction of
social, economic and political inequalities [Art. XIII, Section 1] or for the
promotion of the right to "quality education" [Art. XIV, Section 1]. These
provisions are put in the Constitution as moral incentives to legislation, not as
judicially enforceable rights.[20]

Petitioner is not entitled to a downward

reclassification of Lucky Strike.

Petitioner alleges that assuming the assailed law is constitutional, its Lucky Strike brand
should be reclassified from the premium-priced to the high-priced tax bracket. Relying on BIR
Ruling No. 018-2001 dated May 10, 2001, it claims that it timely sought redress from the BIR to
have the market survey conducted within three months from product launch, as provided for
under Section 4(B)[21] of Revenue Regulations No. 1-97, in order to determine the actual current
net retail price of Lucky Strike, and thus, fix its tax classification. Further, the upward
reclassification of Lucky Strike amounts to deprivation of property right without due process of
law. The conduct of the market survey after two years from product launch constitutes gross
neglect on the part of the BIR. Consequently, for failure of the BIR to conduct a timely market
survey, Lucky Strikes classification based on its suggested gross retail price should be deemed
its official tax classification. Finally, petitioner asserts that had the market survey been timely
conducted sometime in 2001, the current net retail price of Lucky Strike would have been found
to be under the high-priced tax bracket.

These contentions are untenable and misleading.

First, BIR Ruling No. 018-2001 was requested by petitioner for the purpose of fixing
Lucky Strikes initial tax classification based on its suggested gross retail price relative to its
planned introduction of Lucky Strike in the market sometime in 2001 and not for the conduct of
the market survey within three months from product launch. In fact, the said Ruling contained an
express reservation that the tax classification of Lucky Strike set therein is without prejudice,
however, to the subsequent conduct of a survey x x x in order to determine if the actual gross
retail price thereof is consistent with [petitioners] suggested gross retail price.[22] In short,
petitioner acknowledged that the initial tax classification of Lucky Strike may be modified
depending on the outcome of the survey which will determine the actual current net retail price
of Lucky Strike in the market.

Second, there was no upward reclassification of Lucky Strike because it was taxed
based on its suggested gross retail price from the time of its introduction in the market in 2001
until the BIR market survey in 2003. We reiterate that Lucky Strikes actual current net retail
price was surveyed for the first time in 2003 and was found to be from P10.34 to P11.53 per
pack, which is within the premium-priced tax bracket. There was, thus, no prohibited upward
reclassification of Lucky Strike by the BIR based on its current net retail price.

Third, the failure of the BIR to conduct the market survey within the three-month period
under the revenue regulations then in force can in no way make the initial tax classification of
Lucky Strike based on its suggested gross retail price permanent. Otherwise, this would
contravene the clear mandate of the law which provides that the basis for the tax classification
of a new brand shall be the current net retail price and not the suggested gross retail price. It is
a basic principle of law that the State cannot be estopped by the mistakes of its agents.

Last, the issue of timeliness of the market survey was never raised before the trial court
because petitioners theory of the case was wholly anchored on the alleged unconstitutionality of
the classification freeze provision. As a consequence, no documentary evidence as to the actual
net retail price of Lucky Strike in 2001, based on a market survey at least comparable to the one
mandated by law, was presented before the trial court. Evidently, it cannot be assumed that had
the BIR conducted the market survey within three months from its product launch sometime in
2001, Lucky Strike would have been found to fall under the high-priced tax bracket and not the
premium-priced tax bracket. To so hold would run roughshod over the States right to due
process. Verily, petitioner prosecuted its case before the trial court solely on the theory that the
assailed law is unconstitutional instead of merely challenging the timeliness of the market
survey. The rule is that a party is bound by the theory he adopts and by the cause of action he
stands on. He cannot be permitted after having lost thereon to repudiate his theory and cause of
action, and thereafter, adopt another and seek to re-litigate the matter anew either in the same
forum or on appeal.[23] Having pursued one theory and lost thereon, petitioner may no longer
pursue another inconsistent theory without thereby trifling with court processes and burdening
the courts with endless litigation.

WHEREFORE, the motion for reconsideration is DENIED.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila

EN BANC

PHARMACEUTICAL and HEALTH G.R. NO. 173034

CARE ASSOCIATION of the
PHILIPPINES,
Petitioner,
Present:

PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
HEALTH SECRETARY
FRANCISCO T. DUQUE III;
HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA,
& DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE,
DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO, Promulgated:
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The Milk Code, Relevant
International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that are
not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries
of the Department of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.[1]

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give
effect to Article 11[2] of the International Code of Marketing of BreastmilkSubstitutes (ICMBS), a
code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding should be supported, promoted and
protected, hence, it should be ensured that nutrition and health claims are not permitted
for breastmilk substitutes.

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

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

However, on June 28, 2006, petitioner, representing its members that are manufacturers
of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for
the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without
or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR. [3]

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June
19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:

The Court hereby sets the following issues:

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

2. Whether Administrative Order No. 2006-0012 or the Revised

Implementing Rules and Regulations (RIRR) issued by the Department of
Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51
(Milk Code);

2.2 Whether pertinent international agreements1 entered into by

the Philippines are part of the law of the land and may be implemented by
the DOH through the RIRR; If in the affirmative, whether the RIRR is in
accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient

standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO
and Unicef 2002 Global Strategy on Infant and Young Child
Feeding; and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court ofAppeals,[4] to
wit:
 The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its
members. An association has standing to file suit for its workers despite its
lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was

organized x x x to act as the representative of any individual, company, entity or
association on matters related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert
the rights of its members, because it and its members are in every practical
sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. [5] (Emphasis
supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the Court
ruled that an association has the legal personality to represent its members because the results
of the case will affect their vital interests.[7]

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like
in Executive Secretary, that the association is formed to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public.[8]Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry.Petitioner is duly
authorized[9] to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by
the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent
the entire industry, would be remiss in its duties if it fails to act on governmental action that
would affect any of its industry members, no matter how few or numerous they are. Hence,
petitioner, whose legal identity is deemed fused with its members, should be considered as a
real party-in-interest which stands to be benefited or injured by any judgment in the present
action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments[10] regarding infant
and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are
provided with services and nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the use or marketing
of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation.[11] The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.[12]

Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that [n]o treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the members of the
Senate. Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.[13]

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at
this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly authorized and approved
by the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national

policy, adopts the generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations. (Emphasis supplied)

embodies the incorporation method.[14]

In Mijares v. Ranada,[15] the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation

clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law
sees those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit
in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.[16] (Emphasis
supplied)
Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states,[17] i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,[18] a person's right to life, liberty and due
process,[19] and pacta sunt servanda,[20] among others. The concept of generally accepted
principles of law has also been depicted in this wise:

Some legal scholars and judges look upon certain general principles of law as a
primary source of international law because they have the character of jus
rationale and are valid through all kinds of human societies. (Judge Tanaka
in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law
because they are basic to legal systems generally and hence part of
the jus gentium. These principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems. If there should be
doubt or disagreement, one must look to state practice and determine whether
the municipal law principle provides a just and acceptable
solution. x x x [21](Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means a general and consistent practice

of states followed by them from a sense of legal obligation [opinio juris].
(Restatement) This statement contains the two basic elements of custom:
the material factor, that is, how states behave, and the psychological
or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of
the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary
to determine why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do they do it only as
a matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule. Without
it, practice is not law.[22] (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system. [23]

WHA Resolutions have not been embodied in any local legislation. Have they attained the
status of customary law and should they then be deemed incorporated as part of the law of the
land?

The World Health Organization (WHO) is one of the international specialized agencies allied
with the United Nations (UN) by virtue of Article 57,[24] in relation to Article 63[25] of the UN
Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,[26] and has the power to adopt regulations concerning advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce,[27] and to
make recommendations to members with respect to any matter within the competence of the
Organization.[28] The legal effect of its regulations, as opposed to recommendations, is quite
different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the
Organization. A two-thirds vote of the Health Assembly shall be required for the
adoption of such conventions or agreements, which shall come into force for
each Member when accepted by it in accordance with its constitutional
processes.

Article 20. Each Member undertakes that it will, within eighteen months after
the adoption by the Health Assembly of a convention or agreement, take action
relative to the acceptance of such convention or agreement. Each Member
shall notify the Director-General of the action taken, and if it does not accept
such convention or agreement within the time limit, it will furnish a statement of
the reasons for non-acceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures
designed to prevent the international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and similar
products moving in international commerce; (e) advertising and labeling of
biological, pharmaceutical and similar products moving in international
commerce.
 Article 22. Regulations adopted pursuant to Article 21 shall come into force
for all Members after due notice has been given of their adoption by the
Health Assembly except for such Members as may notify the Director-
General of rejection or reservations within the period stated in the
notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into
force for members, in the same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make

recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health.[29] Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:

The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article

23 of the Constitution, the International Code of Marketing
of Breastmilk Substitutes annexed to the present resolution. (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its
sixty-seventh session, considered the fourth draft of the code, endorsed it, and
unanimously recommended to the Thirty-fourth World Health Assembly the text
of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the

WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to
conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-
binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted
most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,[30] specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute soft law or non-binding norms, principles
and practices that influence state behavior.[31]

Soft law does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. [32] It is, however, an
expression of non-binding norms, principles, and practices that influence state
[33]
behavior. Certain declarations and resolutions of the UN General Assembly fall under this
category.[34] The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong Special Administrative Region
v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v. Raada[37] and Shangri-la International
Hotel Management, Ltd. v. Developers Group of Companies, Inc..[38]

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
with the mandate to promote and protect intellectual property worldwide, has resorted to soft
law as a rapid means of norm creation, in order to reflect and respond to the changing needs
and demands of its constituents.[39] Other international organizations which have resorted to soft
law include the International Labor Organization and the Food and Agriculture Organization (in
the form of the Codex Alimentarius).[40]

WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding
on WHO member states, it provides an excellent example of the power of
"soft law" in international relations. International lawyers typically
distinguish binding rules of international law-"hard law"-from non-binding
norms, principles, and practices that influence state behavior-"soft law."
WHO has during its existence generated many soft law norms, creating a
"soft law regime" in international governance for public health.
 The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork for improved international cooperation on infectious
diseases. These resolutions clearly define WHO member states' normative duty
to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS
outbreak has taught the lesson that participating in, and enhancing, international
cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could
inform the development of general and consistent state practice on infectious
disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.[41]

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

WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments
broad powers to close down schools/establishments, conduct health surveillance and
monitoring, and ban importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be

established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that
any compliance by member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in
the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the
framework of the government's general policies and plans, and issue orders and regulations
concerning the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as
part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in
A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically
be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized
branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with
those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to young children or those from ages two years old and
beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe
and adequate nutrition for infants is
provided, there is a need to protect and
promote breastfeeding and to inform the
public about the proper use
of breastmilk substitutes and supplements
and related products through adequate,
consistent and objective information and
appropriate regulation of the marketing and
distribution of the said substitutes,
supplements and related products;
Section 2. Purpose These Revised Rules and
Regulations are hereby promulgated to ensure
the provision of safe and adequate nutrition for
infants and young children by the promotion,
protection and support of breastfeeding and by
ensuring the proper use
of breastmilk substitutes, breastmilksupplements
and related products when these are medically
indicated and only when necessary, on the
basis of adequate information and through
appropriate marketing and distribution.

SECTION 4(e). Infant means a person Section 5(ff). Young Child means a person from
falling within the age bracket of 0-12 the age of more than twelve (12) months up to
months. the age of three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible
substitute for breastmilk in certain instances; but the RIRR provides exclusive
breastfeeding for infants from 0-6 months and declares that there is no substitute nor
replacement for breastmilk:

MILK CODE RIRR

WHEREAS, in order to ensure that safe Section 4. Declaration of Principles The
and adequate nutrition for infants is following are the underlying principles from
provided, there is a need to protect and which the revised rules and regulations are
promote breastfeeding and to inform the premised upon:
public about the proper use
of breastmilk substitutes and supplements a. Exclusive breastfeeding is for
and related products through adequate, infants from 0 to six (6) months.
consistent and objective information and
appropriate regulation of the marketing and b. There is no substitute or
distribution of the said substitutes, replacement for breastmilk.
supplements and related products;
 3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities
for breastmilk substitutes intended for infants from 0-24 months old or beyond, and
forbids the use of health and nutritional claims. Section 13 of the RIRR, which
provides for a total effect in the promotion of products within the scope of the Code, is
vague:

MILK CODE RIRR

SECTION 6. The General Public and
Mothers.
(a) No advertising, promotion or other
marketing materials, whether written, audio
or visual, for products within the scope of
this Code shall be printed, published,
distributed, exhibited and broadcast unless
such materials are duly authorized and
approved by an inter-agency
committee created herein pursuant to the
applicable standards provided for in this
Code.
Section 4. Declaration of Principles The
following are the underlying principles from
which the revised rules and regulations are
premised upon:
xxxx
f. Advertising, promotions, or sponsor-
ships of infant
formula, breastmilk substitutes and other
related products are prohibited.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and
activities for breastmilk substitutes
intended for infants and young children up
to twenty-four (24) months, shall be
allowed, because they tend to convey or
give subliminal messages or impressions
that undermine breastmilk and
breastfeeding or otherwise
exaggerate breastmilk substitutes and/or
replacements, as well as related products
covered within the scope of this Code.

Section 13. Total Effect - Promotion of

products within the scope of this Code
must be objective and should not equate or
make the product appear to be as good or
equal to breastmilk or breastfeeding in the
advertising concept. It must not in any case
undermine breastmilk or
breastfeeding. The total effect should not
directly or indirectly suggest that buying
their product would produce better
individuals, or resulting in greater love,

4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate
use of the products, and in such a
way as not to discourage
breastfeeding.
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts, pictures, illustrations or
information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilksubstitutes and milk
supplements. In this connection, no
pictures of babies and children together
with their mothers, fathers, siblings,
grandparents, other relatives or caregivers
(or yayas) shall be used in any
advertisements for infant formula
and breastmilk supplements;
b. The term humanized, maternalized,
close to mother's milk or similar words in
describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of
infant and milk formula.
Section 16. All health and nutrition claims
for products within the scope of the Code
are absolutely prohibited. For this purpose,
any phrase or words that connotes to
increase emotional, intellectual abilities of
the infant and young child and other like
phrases shall not be allowed.
RIRR
Section 26. Content Each container/label
shall contain such message, in both Filipino
and English languages, and which
message cannot be readily
separated therefrom, relative the following
points:
(a) The words or phrase Important Notice
 (b) Each container shall have a clear,
conspicuous and easily readable
and understandable message in
Pilipino or English printed on it, or
on a label, which message can not
readily become separated from it,
and which shall include the
following points:
(i) the words Important
Notice or their equivalent;
(ii) a statement of the
superiority of breastfeeding;
(iii) a statement that the product
shall be used only on the
advice of a health worker as to
the need for its use and the
proper methods of use;and
(iv) instructions for appropriate
preparation, and a warning
against the health hazards of
inappropriate preparation.
or Government Warning or their
equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no substitute
for breastmilk;
(d) A statement that the product shall be
used only on the advice of a health
worker as to the need for its use and
the proper methods of use;
(e) Instructions for appropriate prepara-
tion, and a warning against the
health hazards of inappropriate
preparation;and
(f) The health hazards of unnecessary or
improper use of infant formula and
other related products including
information that powdered infant
formula may contain pathogenic
microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health

professionals; the RIRR totally prohibits such activity:

MILK CODE RIRR

SECTION 7. Health Care System. Section 22. No manufacturer, distributor,
(b) No facility of the health care system or representatives of products covered by
shall be used for the purpose of promoting the Code shall be allowed to conduct or be
infant formula or other products within the involved in any activity on breastfeeding
scope of this Code. This Code does not, promotion, education and production of
however, preclude the dissemination of Information, Education and Communication
information to health professionals as (IEC) materials on breastfeeding, holding
provided in Section 8(b). of or participating as speakers in classes or
seminars for women and children activities
SECTION 8. Health Workers. - and to avoid the use of these venues to
(b) Information provided by manufacturers market their brands or company names.
and distributors to health professionals
regarding products within the scope of this SECTION 16. All health and nutrition
Code shall be restricted to scientific and claims for products within the scope of the
factual matters and such information shall Code are absolutely prohibited. For this
not imply or create a belief that bottle- purpose, any phrase or words that
feeding is equivalent or superior to connotes to increase emotional, intellectual
breastfeeding. It shall also include the abilities of the infant and young child and
information specified in Section 5(b). other like phrases shall not be allowed.
 6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids
the same.

MILK CODE RIRR

SECTION 8. Health Workers
(e) Manufacturers and distributors of
products within the scope of this Code may
assist in the research, scholarships and
continuing education, of health
professionals,in accordance with the rules
and regulations promulgated by the
Ministry of Health.
Section 4. Declaration of Principles
The following are the underlying principles
from which the revised rules and
regulations are premised upon:
i. Milk companies, and their
representatives, should not form
part of any policymaking body or
entity in relation to the
advancement of breasfeeding.

SECTION 22. No manufacturer, distributor,

or representatives of products covered by
the Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding
of or participating as speakers in classes or
seminars for women and children
activities and to avoid the use of these
venues to market their brands or company
names.

SECTION 32. Primary Responsibility of

Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR

SECTION 6. The General Public and Section 51. Donations Within the Scope
Mothers. of This Code - Donations of products,
(f) Nothing herein contained shall prevent materials, defined and covered under the
donations from manufacturers and Milk Code and these implementing rules
distributors of products within the scope of and regulations, shall be strictly prohibited.
this Code upon request by or with the
approval of the Ministry of Health. Section 52. Other Donations By Milk
Companies Not Covered by this Code. -
Donations of products, equipments, and
the like, not otherwise falling within the
scope of this Code or these Rules, given
by milk companies and their agents,
representatives, whether in kind or in cash,
may only be coursed through the Inter
Agency Committee (IAC), which shall
determine whether such donation be
accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR

Section 46. Administrative
Sanctions. The following administrative
sanctions shall be imposed upon any
person, juridical or natural, found to have
violated the provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum of Ten Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on
the gravity and extent of the
violation, including the recall of the
offending product;
rd
c) 3 violation Administrative Fine of a
minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);
d) 4th violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and extent
of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension
of the License to Operate (LTO) for
one year;
e) 5th and succeeding repeated violations
 Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of
the offending product, cancellation of
the CPR, revocation of the License
to Operate (LTO) of the company
concerned, including the blacklisting
of the company to be furnished the
Department of Budget and
Management (DBM) and the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per
day shall be made for every day the
violation continues after having
received the order from the IAC or
other such appropriate body,
notifying and penalizing the
company for the infraction.
For purposes of determining whether or not
there is repeated violation, each product
violation belonging or owned by a
company, including those of their
subsidiaries, are deemed to be violations of
the concerned milk company and shall not
be based on the specific violating product
alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited
only to children 0-12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of the following products: breastmilk substitutes,
including infant formula; other milk products, foods and beverages, including
bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement
of breastmilk; feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind
of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to
satisfy the normal nutritional requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics; while under Section 4(b), bottle-fed
complementary food refers to any food, whether manufactured or locally prepared, suitable as a
complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
nutritional requirements of the infant. An infant under Section 4(e) is a person falling within the
age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a)
as any food being marketed or otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose. This section conspicuously lacks
reference to any particular age-group of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12 months. In other
words, breastmilk substitutes may also be intended for young children more than 12 months of
age. Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and
promote the nourishment of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as
provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 2[42] and 5(ff)[43] of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible substitute
for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must
be considered and construed together. As held in De Luna v. Pascual,[44] [t]he particular words,
clauses and phrases in the Rule should not be studied as detached and isolated expressions,
but the whole and every part thereof must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole.
Section 7 of the RIRR provides that when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and updated
information. Section 8 of the RIRR also states that information and educational materials should
include information on the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the
use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 3[45] and 4[46] together as
they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under
the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,[47] and
as delegated in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it..[48] However, health
information, particularly advertising materials on apparently non-toxic products
like breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine Islands,[50] health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.[51] Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as (g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of infants and the
methods of preventing and combating dangerous communicable diseases.

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out
the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is to
protect and promote the right to health of the people and instill health consciousness among
them.[52] To that end, it was granted under Section 3 of the Administrative Code the power to
(6) propagate health information and educate the population on important health, medical and
environmental matters which have health implications.[53]

When it comes to information regarding nutrition of infants and young children, however,
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH)
the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and the
power to control such information. These are expressly provided for in Sections 12 and 5(a), to
wit:

SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be principally responsible for the

implementation and enforcement of the provisions of this Code. For this
purpose, the Ministry of Health shall have the following powers and
functions:

(1) To promulgate such rules and regulations as are

necessary or proper for the implementation of this Code
and the accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may

be necessary for or incidental to the attainment of the
purposes and objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of
infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information
on breastmilk vis--vis breastmilk substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual,

dealing with the feeding of infants and intended to reach pregnant women
and mothers of infants, shall include clear information on all the following
points: (1) the benefits and superiority of breastfeeding; (2) maternal
 nutrition, and the preparation for and maintenance of breastfeeding; (3)
the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes.

SECTION 8. Health Workers

xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters, and such information
shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.

xxxx

(d) The term humanized, maternalized or similar terms shall not be

used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code[54]to ensure that
the information that would reach pregnant women, mothers of infants, and health professionals
and workers in the health care system is restricted to scientific and factual matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as
the power to control does not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
 The following are the provisions of the Milk Code that unequivocally indicate that the
control over information given to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and

distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use
of breastmilk substitutes and breastmilk supplements when these are necessary,
on the basis of adequate information and through appropriate marketing and
distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk substitutes
and should include information on the health hazards of unnecessary or improper use of said
product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters and shall
not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information
that would discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising.
 Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Section 16[57]of the RIRR
prohibits all health and nutrition claims for products within the scope of the Milk Code, such as
claims of increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the
Milk Code, to wit:

SECTION 8. Health workers -

xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, andsuch information shall
not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section
5.[58] (Emphasissupplied)

and Section 10(d)[59] which bars the use on containers and labels of the terms humanized,
maternalized, or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a
belief that there is any milk product equivalent to breastmilk or which is humanized or
maternalized, as such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof.However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk companies
and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their
products the exact opposite message. That askewed interpretation of the Milk Code is precisely
what Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk vis-a-vis breastmilk substitutes beconsistent, at the same time giving the
government control over planning, provision, design, and dissemination of information on infant
feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and promotion of breastfeeding as
embodied in Section 2[60] of the Milk Code.

Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It implements

Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual,

dealing with the feeding of infants and intended to reach pregnant women
and mothers of infants, shall include clear information on all the following
points: x x x (5) where needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such materials
contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)

The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR
merely adds a fair warning about the likelihood of pathogenic microorganisms being present in
infant formula and other related products when these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone
to contaminations and there is as yet no technology that allows production of powdered infant
formula that eliminates all forms of contamination.[62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes
and supplements and related products cannot be questioned. It is its intervention into the area
of advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether written, audio

or visual, for products within the scope of this Code shall be printed, published,
distributed, exhibited and broadcast unless such materials are duly authorized
and approved by an inter-agency committee created herein pursuant to the
applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee

composed of the following members is hereby created:

Minister of Health -------------------------------------------- Chairman

Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member

The members may designate their duly authorized representative to every

meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing

materials, whether written, audio or visual, on products within the scope
of this Code;

(2) To approve or disapprove, delete objectionable portions from and

prohibit the printing, publication, distribution, exhibition and broadcast of,
all advertising promotion or other marketing materials, whether written,
audio or visual, on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of
its powers and functions as well as the performance of its duties and
responsibilities; and

(4) To promulgate such rules and regulations as are necessary or

proper for the implementation of Section 6(a) of this
Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed, because they tend to
 convey or give subliminal messages or impressions that
undermine breastmilk and breastfeeding or otherwise
exaggerate breastmilksubstitutes and/or replacements, as well as related
products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities

for breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to
wit:

SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant

formula, breastmilk substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and
marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is
not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether
or not there is an absolute prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12 provides is not an
absolute prohibition because Section 11 while it states and it is entitled prohibition
it states that no advertising, promotion, sponsorship or marketing materials and
activities for breast milk substitutes intended for infants and young children up to
24 months shall be allowed because this is the standard they tend to convey or
give subliminal messages or impression undermine that breastmilk or
breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered
to process and evaluate all the advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it
simply regulates the advertisement and the promotions of breastfeeding milk
substitutes.
xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because
there may be some information dissemination that are straight forward
information dissemination. What the AO 2006 is trying to prevent is any material
that will undermine the practice of breastfeeding, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules and Regulations regarding the Advertising, Promotion
and Marketing of Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making
authority when it totally banned advertising and promotion under Section 11
prescribed the total effect rule as well as the content of materials under Section
13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-Agency Committee is under the Department of Health,
Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
 SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional materials, subject
to the standards that we have stated earlier, which are- they should not
undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the
other Sections, particularly 12 and 13 and 15, Your Honor, because it is
recognized that the Inter-Agency Committee has that power to evaluate
promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement

regarding milk substitute regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however,
we take exceptions and standards have been set. One of which is that, the Inter-
Agency Committee can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.[63]

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section
12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn
provides that the rules and regulations must be pursuant to the applicable standards provided
for in this Code. Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which,
at the risk of being repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx
 (b) Informational and educational materials, whether written, audio, or
visual, dealing with the feeding of infants and intended to reach pregnant
women and mothers of infants, shall include clear information on all the
following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding;(3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of reversing the decision
not to breastfeed; and (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards
of inappropriate foods of feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
xxxx

SECTION 8. Health Workers.

xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual mattersand such information shall not
imply or create a belief that bottle feeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section
5(b).

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and which shall include the
following points:

(i) the words Important Notice or their equivalent;

(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice
of a health worker as to the need for its use and the proper
methods of use; and
(iv) instructions for appropriate preparation, and a warning against
the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for
the enforcement of the provisions of the Code. In relation to such responsibility of the DOH,
Section 5(a) of the Milk Code states that:

SECTION 5. Information and Education

(a) The government shall ensure that objective and

consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR
which reads as follows:

SECTION 13. Total Effect - Promotion of products within the scope of this Code
must be objective and should not equate or make the product appear to be as
good or equal to breastmilk or breastfeeding in the advertising concept. It must
not in any case undermine breastmilk or breastfeeding. The total effect should
not directly or indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony or in any
manner bring better health to the baby or other such exaggerated and
unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion,
and marketing. Through that single provision, the DOH exercises control over the information
content of advertising, promotional and marketing materials on breastmilk vis-a-
vis breastmilk substitutes, supplements and other related products. It also sets a viable standard
against which the IAC may screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following:
public interest, justice and equity, public convenience and welfare, and simplicity,
economy and welfare.[65]
 In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.

4. With regard to activities for dissemination of information to health professionals, the

Court also finds that there is no inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)[66] of the Milk Code, in relation to Section 8(b)[67] of the same Code, allows
dissemination of information to health professionals but such information is restricted to
scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is
the involvement of the manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)[68] of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the continuing education
of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the
same. Petitioner also assails Section 4(i)[69] of the RIRR prohibiting milk manufacturers' and
distributors' participation in any policymaking body in relation to the advancement of
breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form
part of any policymaking body or entity in relation to the advancement of breastfeeding. The
Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section
12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to bepart of policymaking
bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in
any policymaking body in relation to the advancement of breastfeeding is in accord with the Milk
Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 22[70] of the RIRR does not pertain to research assistance to or the
continuing education of health professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22 of the RIRR prohibits milk
companies from giving assistance for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision must be struck down.

It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said
sections of the RIRR provide that research assistance for health workers and researchers
may be allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations
on the kind of research done or extent of assistance given by milk companies are completely in
accord with the Milk Code.

Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)[74] of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships
and the continuing education, of health professionals in accordance with the rules and
regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes upon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such donations. The
DOH then appropriately exercised its discretion through Section 51[75] of the RIRR which sets
forth its policy not to request or approve donations from manufacturers and distributors
of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that
any donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned out
by respondents, the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH
from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are
not found in the Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.[76] is

misplaced. The glaring difference in said case and the present case before the Court is that, in
the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted
by the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil
Aeronautics Board (CAB) was granted by the same law the power to review on appeal the order
or decision of the CAA and to determine whether to impose, remit, mitigate, increase or
compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution
imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the
Court upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission
of prohibited acts. The Court found that nothing in the circular contravened the law because the
DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants
the DOH the authority to fix or impose administrative fines. Thus, without any express grant of
power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this
regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section
46 of the RIRR. Said provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b)
(3) of the Milk Code authorizes the DOH to cause the prosecution of the violators of this Code
and other pertinent laws on products covered by this Code. Section 13 of the Milk Code
provides for the penalties to be imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:

SECTION 13. Sanctions

 (a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be punished
by a penalty of two (2) months to one (1) year imprisonment or a fine of not less
than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a juridical person, the
chairman of the Board of Directors, the president, general manager, or the
partners and/or the persons directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to

any health worker, distributor, manufacturer, or marketing firm or personnel for
the practice of their profession or occupation, or for the pursuit of their business,
may, upon recommendation of the Ministry of Health, be suspended or revoked
in the event of repeated violations of this Code, or of the rules and regulations
issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations
or parts thereof inconsistent with these revised rules and implementing regulations
are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and
rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or

the power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers.[78] Such express grant of rule-
making power necessarily includes the power to amend, revise, alter, or repeal the
same.[79] This is to allow administrative agencies flexibility in formulating and adjusting the
details and manner by which they are to implement the provisions of a law, [80] in order to make it
more responsive to the times. Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed or
modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents

is unnecessary and oppressive, and is offensive to the due process clause
of the Constitution, insofar as the same is in restraint of trade and because
a provision therein is inadequate to provide the public with a comprehensible
basis to determine whether or not they have committed a violation.[81](Emphasis
supplied)

Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and 52[89] as the
provisions that suppress the trade of milk and, thus, violate the due process clause of the
Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests.[90] In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,[91] it was held
thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, despite the fact that our present Constitution
enshrines free enterprise as a policy, it nonetheless reserves to the
government the power to intervene whenever necessary to promote the
general welfare. There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our environment. Thus, in
the aforecited case, the Court declared that free enterprise does not call for
removal of protective regulations. xx x It must be clearly explained and
proven by competent evidence just exactly how such protective regulation
would result in the restraint of trade. [Emphasis and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in
any policymaking body (Section 4(i)), classes and seminars for women and children (Section
22); the giving of assistance, support and logistics or training (Section 32); and the giving of
donations (Section 52) would unreasonably hamper the trade
ofbreastmilk substitutes. Petitioner has not established that the proscribed activities are
indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint
of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term milk company, to wit:
 SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer,
distributor of infant formula, follow-up milk, milk formula, milk
supplement, breastmilk substitute or replacement, or by any other description of
such nature, including their representatives who promote or otherwise advance
their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) Distributor means a person, corporation or any other entity in the
public or private sector engaged in the business (whether directly or
indirectly) of marketing at the wholesale or retail level a product within
the scope of this Code. A primary distributor is a manufacturer's sales
agent, representative, national distributor or broker.

xxxx

(j) Manufacturer means a corporation or other entity in the public or

private sector engaged in the business or function (whether directly
or indirectly or through an agent or and entity controlled by or under
contract with it) of manufacturing a products within the scope of this
Code.

Notably, the definition in the RIRR merely merged together under the term milk company the
entities defined separately under the Milk Code as distributor and manufacturer.The RIRR also
enumerated in Section 5(w) the products manufactured or distributed by an entity that would
qualify it as a milk company, whereas in the Milk Code, what is used is the phrase products
within the scope of this Code. Those are the only differences between the definitions given in
the Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers
and distributors, the Court sees no harm in the RIRR providing for just one term to encompass
both entities. The definition of milk company in the RIRR and the definitions of distributor and
manufacturer provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of milk company provided in the RIRR would
bring about any change in the treatment or regulation of distributors and
manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with
the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.

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

Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOIDfor
being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO
M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA R.
PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG,
Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A.
EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO
III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO
OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN,
Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE, Secretary,
Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M.
ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines,
ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE
ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO
0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving
violations of environmental laws and regulations in relation to the grounding of the US military
ship USS Guardian over the Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two huge
coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral
structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are
considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306
issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the
Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of
marine life. The 97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species. UNESCO cited Tubbataha's
outstanding universal value as an important and significant natural habitat for in situ
conservation of biological diversity; an example representing significant on-going ecological and
biological processes; and an area of exceptional natural beauty and aesthetic importance.2

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation
of the globally significant economic, biological, sociocultural, educational and scientific values of
the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations."
Under the "no-take" policy, entry into the waters of TRNP is strictly regulated and many human
activities are prohibited and penalized or fined, including fishing, gathering, destroying and
disturbing the resources within the TRNP. The law likewise created the Tubbataha Protected
Area Management Board (TPAMB) which shall be the sole policy-making and permit-granting
body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In

December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said
vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and crew liberty."4 On January
6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.1âwphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship
ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-
southeast of Palawan. No cine was injured in the incident, and there have been no reports of
leaking fuel or oil.

On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for
the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K.
Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated
his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del
Rosario that the United States will provide appropriate compensation for damage to the reef
caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing
the last piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their
respective sector/organization and others, including minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark
A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US
respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense),
Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral
Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D.
Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant),
collectively the "Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect
the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental,
Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also seek a directive from this Court for the
institution of civil, administrative and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A.
No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and
destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for being
unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court:
1. Immediately issue upon the filing of this petition a Temporary Environmental Protection Order
(TEPO) and/or a Writ of Kalikasan, which shall, in particular,

a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and liability schemes for breaches of those
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces
Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation,

and limited commercial activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an additional buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;

3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and environmental accountability]
under Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence administrative, civil, and

criminal proceedings against erring officers and individuals to the full extent of the law,
and to make such proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the settlement of

all meritorious claims for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other States, and damages for
personal injury or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in

the collection and production of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other of
the disposition of all cases, wherever heard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage
or post salvage plan or plans, including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations in accordance

with the Local Government Code and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the

TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture
towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the

grounding of the Guardian in light of Respondents' experience in the Port Royale
grounding in 2009, among other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in the name of

transparency and accountability such environmental damage assessment, valuation,
and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical

support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow for
 the exercise of erga omnes rights to a balanced and healthful ecology and for damages
which follow from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
and

4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a
motion for early resolution and motion to proceed ex parte against the US respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular
inspection and production orders, respondents assert that: ( 1) the grounds relied upon for the
issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations
on the USS Guardian were already completed; (2) the petition is defective in form and
substance; (3) the petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination of the extent of
responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it
is "a party's personal and substantial interest in a case where he has sustained or will sustain
direct injury as a result" of the act being challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural matter which this Court has relaxed
for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to
"a balanced and healthful ecology which, for the first time in our constitutional history, is
solemnly incorporated in the fundamental law." We declared that the right to a balanced and
healthful ecology need not be written in the Constitution for it is assumed, like other civil and
polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an
issue of transcendental importance with intergenerational implications.1âwphi1 Such right
carries with it the correlative duty to refrain from impairing the environment.14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled
that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Thus:

Petitioners minors assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the
right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present a:: well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations to
come.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits in the Rules "collapses the traditional rule on
personal and direct interest, on the principle that humans are stewards of nature."16

Having settled the issue of locus standi, we shall address the more fundamental question of
whether this Court has jurisdiction over the US respondents who did not submit any pleading or
manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-
suability of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from
suit, as follows:

The rule that a state may not be sued without its consent, now · expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of the generally accepted principles of international
law that we have adopted as part of the law of our land under Article II, Section 2. x x x.

Even without such affirmation, we would still be bound by the generally accepted principles of
international law under the doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the law of every civilized state as
a condition and consequence of its membership in the society of nations. Upon its admission to
such society, the state is automatically obligated to comply with these principles in its relations
with other states.

As applied to the local state, the doctrine of state immunity is based on the justification given by
Justice Holmes that ''there can be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one
another. A contrary disposition would, in the language of a celebrated case, "unduly vex the
peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]

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

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which
reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign
states from the jurisdiction of local courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are soverr~ign
equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that if
the judgment against an official would rec 1uire the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not been
formally impleaded.21(Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not
an immunity from the observance of the law of the territorial sovereign or from ensuing legal
liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a
Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted
by two officers of the US Air Force, and was eventually dismissed from his employment when
he was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the
said employee against the military officers, the latter moved to dismiss the case on the ground
that the suit was against the US Government which had not given its consent. The RTC denied
the motion but on a petition for certiorari and prohibition filed before this Court, we reversed the
RTC and dismissed the complaint. We held that petitioners US military officers were acting in
the exercise of their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging their
duties as agents of the United States, they cannot be directly impleaded for acts imputable to
their principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of
another State without the former's consent or waiver has evolved into a restrictive doctrine
which distinguishes sovereign and governmental acts (Jure imperil") from private, commercial
and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts Jure imperii. The restrictive application of State immunity is
proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs.24

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle,
thus:

It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe
Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of
his rights, is not a suit against the State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the State, he violates
or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent." The rationale for
this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating
an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from
suit will not apply and may not be invoked where the public official is being sued in his private
and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice
and in bad faith, or beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In
this case, the US respondents were sued in their official capacity as commanding officers of the
US Navy who had control and supervision over the USS Guardian and its crew. The alleged act
or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they we:re performing official military duties. Considering that the satisfaction of
a judgment against said officials will require remedial actions and appropriation of funds by the
US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the matter within the ambit of
Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained
that while historically, warships enjoy sovereign immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage through the latter's
internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter
of long-standing policy the US considers itself bound by customary international rules on the
"traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation of its resources, and the exercise of
jurisdiction over maritime regimes. It is a branch of public international law, regulating the
relations of states with respect to the uses of the oceans."28 The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of
the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty
(mare clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to
use the world's marine waters is one of the oldest customary principles of international
law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the
different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4)
exclusive economic zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil.32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith which is
made to it, the coastal State may require it to leave the territorial sea immediately.
 Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State
resulting from the non-compliance by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
law.

Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-
commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party to the UNCLOS, as in this
case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but
despite this the US, the world's leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the
U.S. delegation ultimately voted against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able provisions. The revisions satisfied the Clinton
administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the
Senate requesting its advice and consent. Despite consistent support from President Clinton,
each of his successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States to
UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and
110th Congresses, its progress continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate
consideration among his highest priorities. This did not occur, and no Senate action has been
taken on UNCLOS by the 112th Congress.34

Justice Carpio invited our attention to the policy statement given by President Reagan on March
10, 1983 that the US will "recognize the rights of the other , states in the waters off their coasts,
as reflected in the convention [UNCLOS], so long as the rights and freedom of the United States
and others under international law are recognized by such coastal states", and President
Clinton's reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage other countries to do likewise." Since
Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US
'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the rights of other states in their
internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the
UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining
(Part XI) which considers the oceans and deep seabed commonly owned by mankind," pointing
out that such "has nothing to do with its [the US'] acceptance of customary international rules on
navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses
the ratification of the UNCLOS, as shown by the following statement posted on its official
website:

The Convention is in the national interest of the United States because it establishes stable
maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage,
transit passage, and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep"
by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign
immunity of warships, auxiliaries anJ government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by enhancing
the ability of the US to assert its sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the Sea Convention that first
established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean
that the US will disregard the rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as provided in Article 197, viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or
through competent international organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with this Convention, for the
protection and preservation of the marine environment, taking into account characteristic
regional features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute.
Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States
while navigating the.latter's territorial sea, the flag States shall be required to leave the territorial
'::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel operated for non-
commercial purposes under Article 31.

Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they
invoke federal statutes in the US under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims, petitioners asseverate that the
US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

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

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not
to special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it
can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be filed separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of
criminal jurisdiction provisions of the VF A to US personnel who may be found responsible for
the grounding of the USS Guardian, would be premature and beyond the province of a petition
for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such
waiver of State immunity is indeed absolute. In the same vein, we cannot grant damages which
have resulted from the violation of environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same violation of an
environmental law.37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a
writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision,
the court shall render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
 (b) Directing the respondent public official, govemment agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become moot
in the sense that the salvage operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court. But insofar as the directives to
Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned, petitioners are entitled to these
reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed
readiness to negotiate and discuss the matter of compensation for the damage caused by the
USS Guardian. The US Embassy has also declared it is closely coordinating with local scientists
and experts in assessing the extent of the damage and appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can
be gleaned from the following provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods are encouraged by the court,
to wit:

RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from
the parties if they have settled the dispute; otherwise, the court shall immediately refer the
parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC)
unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court
or legal researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of
notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-day
period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch
clerk of court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute.
The judge may issue a consent decree approving the agreement between the parties in
accordance with law, morals, public order and public policy to protect the right of the people to a
balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise
or settle in accordance with law at any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the
USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and
remained stuck for four days. After spending $6.5 million restoring the coral reef, the US
government was reported to have paid the State of Hawaii $8.5 million in settlement over coral
reef damage caused by the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for the
damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team which will "initiate discussions
with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine scientists." The US team intends to "help
assess damage and remediation options, in coordination with the Tubbataha Management
Office, appropriate Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a

major relief that may be obtained under a judgment rendered in a citizens' suit under the Rules,
viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper
reliefs which shall include the protection, preservation or rehabilitation of the environment and
the payment of attorney's fees, costs of suit and other litigation expenses. It may also require
the violator to submit a program of rehabilitation or restoration of the environment, the costs of
which shall be borne by the violator, or to contribute to a special trust fund for that purpose
subject to the control of the court.1âwphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security interests
under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-"the political" --departments of the
government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a
review of the VFA and to nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly
concurred in by the Philippine Senate and has been recognized as a treaty by the United States
as attested and certified by the duly authorized representative of the United States government.
The VF A being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.42 The present petition under the Rules is
not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.